A joint ministerial letter from the Department of Health & Social Care and the Department of Education was issued on the 30th April 2020, to all children and young people with special educational needs and disabilities (SEND), their parents/carers and families, and others who support them.
The letter sets out a temporary change to the law in 2, key ways:
1) A notice was issued under the Coronavirus Act 2020 confirming that local authorities and health commissioning bodies (e.g. Clinical Commissioning Groups) must now use their reasonable endeavours to secure the provision set out within a child or young person’s EHC plan. This means that local authorities and health bodies must consider, for each child and young person with an EHC plan, what they need to provide during the period of the notice. This may result in a child or young person’s provision being different from that which is set out in their EHC plan, but local authorities and health services will still seek to support the needs of the child or young person in the new circumstances we find ourselves in. For example, they may offer support virtually rather than face to face.
This legal change will be in force from 1st to 31st May 2020 (but may be extended). 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 (duty to secure special educational provision and health care provision in accordance with EHC plan).
2) Where a reason relating to the incidence or transmission of coronavirus applies, the usual timescales in regulations for various EHC processes will be replaced by requirements on local authorities, health care professionals and others to act as soon as reasonably practicable (or in line with any other timing requirement in the regulations being amended). These changes will be in force from 1st May to 25th September 2020 and will be kept under review. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’).
What will remain unchanged?
These temporary changes to the law (under section 2) above), only affect various statutory timescales for processes relating to EHC needs assessments and plans. All of the other requirements of the EHC needs assessments and plan processes remain unchanged.
- A local authority must still consider requests for a new EHC needs assessment or a re-assessment.
- Where the local authority decides to carry out an EHC needs assessment, it must still secure all of the required advice and information in order to be able to issue a plan.
- Section 19 of the Children and Families Act 2014, which requires local authorities to have regard to the views and wishes of a child, the child’s parent or a young person when exercising its SEND functions under the Act, remains in force.
- A local authority must continue to have regard to the guidance on the handling of delays in paragraph 9.43 10 of the SEND Code of Practice. Where the circumstances relating to coronavirus (COVID-19) set out in the Amendment Regulations apply to more than one process, then an exception may apply to each of those processes. If a process with a statutory timescale begins where a delay relating to coronavirus (COVID-19) is likely, the local authority should advise the parent or young person of this.
- One of the timescales relating to EHC plans is giving parents or the young person at least 15 days to give views and make representations on the content of a draft plan. There is no change to the law here. Local authorities will wish to be alert to the circumstances of parents and young people in the time of the outbreak and to take this into account in setting the deadline. It may be harder for parents and young people to contact early years providers, schools and colleges, for example, to gather information relating to deciding their preference over setting. Parents and young people may themselves be ill or otherwise directly affected by the outbreak.
- A final EHC plan must still include all of the required advice and information.
- The provision set out in the final plan should be in line with the statutory requirements for any EHC plan and not be limited because of the circumstances of coronavirus (COVID-19).
- Reviews and re-assessments of EHC plans must still take place (although there can in some circumstances be flexibility over the timing of an annual review, see paragraphs below)
- Decisions, including those over the content of any EHC plan, must continue to be made in accordance with the statutory framework and be based on the individual needs, provision and outcomes for the child or young person. Local authorities must not apply blanket approaches in relation to EHC needs assessments or plans processes and decision-making. For example, local authorities cannot implement a general policy of refusing to consider new requests because of coronavirus (COVID-19). Neither can they make blanket decisions based on particular age groups of children and young people, those with certain types of need, or based on whether they are at home or in school.
Annual reviews of EHC plans – requirements remain in place
However, the government has legislated to provide extra flexibility for local authorities over the timing of these reviews. Where it is impractical for a local authority to complete an annual review of a plan within the prescribed timescales for a reason relating to the incidence or transmission of coronavirus (COVID-19), then the local authority must complete it as soon as reasonably practicable13 .
Annual reviews may, in the current circumstances, need to take a different form. However, it is important that they continue to ensure that the child or young person is at the centre of the process and can engage with the process in a meaningful way. A review meeting, even if by necessity briefer than usual, can be reassuring for parents, children and young people, through ensuring that their EHC plan is up-to-date so that they can receive appropriate provision.
The duty on education settings to admit (section 43): no change
Whilst the Secretary of State for Education now has powers under the Coronavirus Act 2020 by notice temporarily to disapply the duty to admit, he has not issued any such notice at this point in time. An early years provider, school, college or other setting named in an EHC plan must accordingly admit the child or young person.
Where a setting is temporarily closed, the setting must still admit. In the case of a school or college, the child or young person must be placed on the roll and treated in the same way as other pupils or students in the setting. The government’s advice on SEND risk assessments is that during the outbreak local authorities should consider the needs of those with an EHC plan, and make a risk assessment, consulting educational settings and parents or carers, to determine whether these children and young people can have their needs met at home and be safer there than attending an educational setting. In addition, the local authority must make reasonable endeavours to secure the provision in the EHC plan.
The timescale for education settings to respond to a proposal to name them in an EHC plan: no change
The expectation in the SEND Code of Practice that local authorities give early years providers, schools and colleges up to 15 days to respond to a proposal to name their institution in an EHC plan remains in place. The request to consider a placement that is sent to the setting for consultation over the naming of that setting will include the draft plan and all of the advice and information received as part of the assessment. This provides considerable levels of information about the individual’s needs, provision and outcomes. In addition, the proposed setting can, as part of its consideration, make direct contact with the parent or young person to discuss the admission.
In most instances, settings should remain able to engage effectively in this aspect of the EHC plan process and families might still reasonably expect this to happen as part of the timely completion of an EHC plan. We recognise, however, that staff absence because of illness, self-isolation etc may affect the speed with which a setting can reply. In such circumstances, the setting needs to communicate with the local authority about a possible delay in responding.
Communication during this part of the process is key to effective decision-making. We recommend that in parallel with sending the proposal to the setting, the local authority also makes phone contact. While settings may remain closed to pupils or students, we look to them to make arrangements that enable them to continue to respond to consultations on future admissions during this period.
Complaints and rights of appeal of parents and young persons: no change
Clearly these are unprecedented times. One aspect of this is that the vast majority of those with EHC plans are not currently attending their usual education setting. This may make it more difficult for the local authority or health commissioning body to secure or arrange the full range of provision in an EHC plan. It may also not be appropriate during the outbreak for local authorities, health bodies, educational psychologists and other professionals to provide their usual level of service delivery in relation to the EHC needs assessments and plans processes. This is why the law in relation to these matters has temporarily been modified.
In most instances, families and the local authority or health body and their partners will be able to work together to agree a mutually satisfactory arrangement for the time being. However, where a parent or young person may be dissatisfied about the actions of a local authority or health body over how they have discharged their modified s42 duty or about the timeliness with which processes 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 there are effective ways of resolving such disagreements swiftly, wherever possible using established decision-making mechanisms within the local area. The complaints mechanisms described in Chapter 11 of the SEND Code of Practice are unchanged, although the Local Government and Social Care Ombudsman has temporarily suspended all casework activity. In the first instance, families will often be able to use the local authority’s or health commissioning body’s complaints procedures. Local authorities and health commissioning bodies will need to ensure that these procedures remain effective for the current context. SENDIASS will continue to have a key role to play in supporting families in finding the best way forward.
Rights of Appeals to the First-tier Tribunal (SEND): no change
This non-statutory guidance provides a summary of these legislative changes and sets out the key implications for all those who play a part in the processes relating to EHC needs assessments and plans.
NOTE: Given that the changes to legislation are temporary, The Department for Education will not be updating the statutory guidance, the SEND code of practice: 0 to 25 years. They recommend, therefore, that anyone referring to the SEND Code of Practice about EHC needs assessments and plans also reads this guidance. It is also important to refer to the Amendment Regulations for the full detail of the changes.
West Sussex County Council response
West Sussex County Council have responded by saying “our SEN Assessment Team and other teams within Inclusion are working through the implications and requirements to ensure the Local Authority remains compliant. They are doing this with colleagues in the health service and the West Sussex Parent Carer Forum.”
Annex A: details of the amendments to the existing Regulations