Top Tips for sharing concerns with your child’s school

If you are a parent of a child in education, then you don’t need anyone stating how difficult this past year has been. After nearly a year of lockdowns and changes in the way your child or young person (‘child’ for rest of the blog) is being taught, you will be more than aware of the impact on all involved. You may have found a routine that works (even if not ideal), with good communication happening and although you may have concerns, school are aware of these and all are working together to address them.

But what if you have new or increasing concerns about your child’s learning? Should you be talking to school now or waiting for things to be more ‘normal’ (especially with ‘normal’ now seemingly within our grasp). Do school still have a duty to support your child’s SEN even if your child is not yet back at school? And what is the best way to share those concerns, knowing how topsy turvy things are?

Duties on Schools

We know that most schools are doing everything they can despite the immense challenges they face. The legal duty on schools and colleges to use their ‘best endeavours’ to meet the special educational needs of their pupils and students still continues. This applies whether they are attending school or college or are at home for any period and includes those with EHCPs or on SEN Support (Part 3, section 66 Children & Families Act 2014).

Vicky Ford, MP Parliamentary Under-Secretary of State for Children and Families stated in her letter dated 14^th January 2021 for those whose child is not able to attend school:

“all pupils and students not receiving face-to-face education for whatever reason should be provided with suitable remote education. Education settings should work collaboratively with families, putting in place reasonable adjustments as necessary, so that pupils with SEND can successfully access remote education alongside their peers.”

The bottom line therefore is that schools continue to be very much responsible for offering SEN support to those that need it (even if it looks different to usual) whether your child attends school physically or receives remote education at home.

Here then are some Top Tips on what to consider if you want to share your concerns.

Top tips

Think about the reasons you are considering contacting the school now

Before contacting the school, think about whether you are just informing them or whether you are asking for something. Is there an urgency or escalation about your concerns or have the concerns been on-going and you just think they should know? Is the situation hitting crisis point or do you want the school to know ahead of time for when more ‘normality’ is in place?

Establish who the best person to talk to is

Because of the changes that most schools have had to make during this pandemic, it is worth contacting your child’s teacher / form teacher or head of year to find out who best to share your concerns with. Although you used to speak with your child’s teacher or SENCO, this may have now changed. At the same time find out whether a phone call or email is best (if you are happy to do either). It may be beneficial to put everything into an email initially and then phone / face to face discussion can be held to discuss further.

Let them know about any important developments in your child’s life.

These may include new medical diagnoses, results of health investigations, tests or assessments; changes in family life which may have an effect on your child’s behaviour or mood; new behaviours you have noticed at home and which you think may be important. This will help the school consider what strategies or interventions may be needed. This would apply regardless of whether your child is still at home or attending school.

Explain your concerns clearly and concisely

Sometimes we think people should understand what’s behind the words we speak or write i.e. the hidden desperations or worries, but this shouldn’t be presumed.

Whilst the teacher / Senco etc do not need a long history of what has been happening previously, it may be helpful to give a concise picture of before and now. For example:

“**** used to love learning and would talk for hours about what she had done at school, now all I get is one word responses and she tells me she hates school” Or

“As you know, *** had a lot of 1:1 and group support to help keep him on track. I have tried doing this myself but he is not responding well to me being there whilst he learns and he gets so distracted that he isn’t really learning”.

Explain what you have already done (and the effects of those things)

If you have tried some strategies already to help your child’s difficulties, explain what you have tried and what happened. Did they work or not? Did they work for some of it but not other parts? This can be helpful for several reasons.

1) The school can see the kind of things you have been doing and steer you onto the right track if they have other suggestions

2) They can keep a record of what you have tried to build a holistic picture which will help when reviewing your child’s needs etc.

3) It will prevent school suggesting things you have already done.

4) It may help make a smoother transition back to school (if your child is still being educated at home)

State what you are wanting from the school clearly and concisely

Now that you have shared your concerns, is there anything you would like to see the school do about them?

Perhaps you are just happy to simply inform them. On the other hand, you may be looking for a positive outcome.

Ask yourself what would it look like if the concern was addressed and no longer an issue? Using the situations above as examples: ‘**** would talk positively about school again’ or ‘**** is able to focus on a piece of work without being distracted’

If you have ideas about how things could be improved, it is important to share these.

Even if school cannot agree to them, it gives a platform for possible compromise or a diving board to perhaps other more suitable suggestions.

Last but not least – Remember we are all in the same storm

Our experiences of the past year have been likened to us all being in the same storm, but not necessarily in the same boat. Whether you are a parent, child or teacher, lives have been challenged. Some will have embraced their particular challenges, but some will be holding on by their fingernails.

Never has there been a more important time for empathy (the ability to understand and share the feelings of another). It is important to share your concerns about your child, as the school still has a duty to support where this is needed. An empathetic, collaborative approach with those you share these concerns with, will be far more effective for all concerned as you work together.

By changing the ‘them and us’ barrier to a collective ‘we’, a partnership is formed, which can only have a beneficial result for your child, yourself and the teachers involved.

For more general tips about talking with professionals, including the use of Effective Communication please see our leaflet (found through the resources page of our website)

What next

If despite sharing your concerns with the school, you feel unhappy with the response then consider putting these in writing in the following way:

For those being educated by school at home

Write to the school stating that you believe the remote education currently being offered is insufficient to meet your child’sneeds:

Give your reasons why you think the education / support is insufficient
Detail the support you feel is needed, and why
Outline any reasons you have been given already by the school/college as to why this is not being made. See also remote education guidance and OSFTED good practice]
Acknowledge that the current situation means provision cannot always be made exactly as it was previously, but then explain how you believe the required support could be made instead.

For those at nursery/school/college

Write to the nursery / school / college stating that you believe they are not fulfilling their legal duty, because:

Describe the support that the child or young person should be getting,
Explain that this is not happening or give details about what is happening.
Outline any reasons given by the nursery/school/college as to why this support is not being provided.]
Acknowledge that the current situation means provision cannot always be made exactly as it was previously, but then explain how you believe the required support could be made instead.

Additional information:

Remote Education: https://www.gov.uk/guidance/supporting-your-childrens-education-during-coronavirus-covid-19
Information for parents and carers about attending schools, nurseries and colleges in the spring term 2021: https://www.gov.uk/government/publications/what-parents-and-carers-need-to-know-about-early-years-providers-schools-and-colleges-during-the-coronavirus-covid-19-outbreak
Resources and advice for supporting with home learning on the West Sussex Local Offer: https://westsussex.local-offer.org/information_pages/608-resources-and-advice-for-supporting-home-learning

Returning to Education and Childcare – who for and when?

There have been quite a few changes over the past few weeks in terms of who can go to school and when. Here is a current guide on those changes (as of 19th June 2020)

Priority Groups

Education and childcare settings have already been open to priority groups (vulnerable children and children of critical workers).

Whilst the definitions of those who are defined as vulnerable children has stayed the same within the ‘Supporting vulnerable children and young people during the coronavirus (COVID-19) guidance’, the attendance criteria within it has now been updated.

From the 1st June, all eligible children (children of critical workers and those deemed as vulnerable) are encouraged to attend settings, (where there are no shielding concerns for the child or their household) even if parents are able to keep their children at home. They will continue to be offered a place, regardless of the year group they are in.

Vulnerable children of all year groups continue to be expected and encouraged to attend educational provision– where it is appropriate for them to do so.

Vulnerable children and young people for the purposes of continued attendance during the coronavirus (COVID-19) outbreak are those across all year groups who:

are assessed as being in need under section 17 of the Children Act 1989, including children and young people who have a child in need plan, a child protection plan or who are a looked-after child
have an education, health and care (EHC) plan and it is determined, following risk assessment, that their needs can be as safely or more safely met in the educational environment
have been assessed as otherwise vulnerable by educational providers or local authorities (including children’s social care services), and who could therefore benefit from continued attendance. This might include children and young people on the edge of receiving support from children’s social care services, adopted children, those at risk of becoming NEET (‘not in employment, education or training’), those living in temporary accommodation, those who are young carers and others at the provider and local authority’s discretion.

Children of critical (key) workers –
The definition of critical workers remains unchanged and continues to include those who work in:

health and social care;
education and childcare,
key public services;
local and national government;
food and other necessary goods;
public safety and national security;
utilities, communication and financial services.

From 1^st June

Alongside priority groups, Primary schools to welcome back children in:

nursery,
reception,
year 1 and
year 6.

Nurseries and other early years providers, including childminders, to begin welcoming back all children.

In childcare settings, providers can welcome back all children. Where the physical layout of a setting does not allow small groups of children to be kept at a safe distance apart, practitioners will be required to exercise judgement in ensuring the highest standards of safety are maintained. In some cases, it may be necessary for providers to introduce a temporary cap on numbers to ensure that safety is prioritised.

From 1 June, childminders can look after children of all ages, in line with usual limits on the number of children they can care for.

From 15^th June onwards

Secondary schools, sixth form and further education colleges are to offer some face-to-face support to supplement the remote education of:

year 10,
year 12, and
16 to 19 students who are due to take key exams next year

(alongside the full-time provision already being offered for priority groups)

Alternative provision settings should mirror the approach being taken for mainstream schools and also offer some face-to-face support for years 10 and 11 students (as they have no year 12).

To note:

From the 1st June, any setting that cannot achieve these increases above at any point because:

there are not enough classrooms or spaces available in the setting and / or
they do not have enough available teachers or staff to supervise the groups

have flexibility but must first focus on continuing to provide places for priority groups (vulnerable children and the children of critical workers).

Special schools, special post-16 institutions and hospital schools will work towards a phased return of more children and young people without a focus on specific year groups.

Will ALL Primary school children return to school before the summer holidays?

In a nutshell – no

PM Statement at the Coronavirus Press Conference of 10^th June – the Prime Minister has now said that not all primary school children will be able to return to school before the summer holidays as hoped. This is because the infection rate is not low enough and schools would be unable to alter their social distancing plans to make it safe for all to return at this time. It is hoped that schools will be able to bring back as many pupils as they can within those smaller class sizes.

It will be down to the individual school, working with the LA to determine through risk assessments as to how many children they can safely have back before the summer holidays begin.

Will ALL children return in September?

What if my child has an EHCP and has not been allowed to go to school so far?

Where a child or young person has an Education, Health & Care Plan (EHCP) (and is therefore classed as vulnerable under the Corona virus Act), risk assessments should be done by the Local Authority in consultation with educational settings and parent carers. Attendance for those with EHCPs is now expected, where it is determined following risk assessment, that their needs can be safely or more safely met in the educational environment. – Supporting Vulnerable Children guidance May 15^th. This has changed from the guidance at the beginning of lockdown.

Settings and LAs should keep risk assessments up to date to reflect any change in circumstances taking into account that some parents and carers may not be able to sustain the levels of care and support that their children need for a long period of time. Any decisions should still be made in consultation with parent carers, schools and the LA and those decisions should be formally recorded as part of the Risk Assessment.

My child has an EHCP – Will my child have the same provision as before?

Until 30th June (although this may be extended), local authorities’ duty to secure provision under section 42 has been changed temporarily. This means that local authorities and health commissioning bodies must consider for each child and young person with an EHC Plan what they can reasonably provide.

For some the provision specified in their EHC plan can continue, for others (because of the impact of coronavirus (COVID-19) on local authorities or health commisisoning bodies) the provision may need temporarily to be different to that which is set out in their EHC Plan (section F & G). Any changes to provision should be written down (recorded).

What if my child or young person is clinically vulnerable / extremely vulnerable?

For the vast majority of children and young people, coronavirus (COVID-19) is a mild illness. Children and young people (0 to 18 years of age) who have been classed as clinically extremely vulnerable due to pre-existing medical conditions have been advised to shield. We do not expect these children to be attending school or college, and they should continue to be supported 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 (COVID-19). A small minority of children will fall into this category, and parents should follow medical advice if their child is in this category.

What if a child, young person or staff member lives in a household with someone who is clinically vulnerable / extremely vulnerable?

As set out in the COVID-19: guidance on shielding and protecting people for those defined on medical grounds as clinically extremely vulnerable, it is advised they only attend an education or childcare setting if stringent social distancing can be adhered to and, in the case of children, they are able to understand and follow those instructions.

This may not be possible for very young children and older children without the capacity to adhere to the instructions on social distancing.

If stringent social distancing cannot be adhered to, those individuals are not expected to attend. They should instead be supported to learn or work at home.

If a child, young person or a member of staff lives with someone who is clinically vulnerable (but not clinically extremely vulnerable), including those who are pregnant, they can attend their education or childcare setting.

If you have any concerns and would like to discuss these with one of our advisers, please contact SENDIAS on 0330 222 8555 or email: send.ias@westsussex.gov.uk. Please let us know the area of West Sussex you live in when you make contact.

NEXT TIME: What is being done by schools to keep children, families and staff safe?

Reviewing an EHC Plan (also known as Annual Reviews)

Introduction to Annual Reviews

All children and young people with an Education, Health and Care Plan must have an annual review and is a process that must happen by law.

According to the CoP 2015 EHC Plans must:

be reviewed by the local authority as a minimum every 12 months.
focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan.
also consider whether these outcomes and supporting targets remain appropriate.

What is an Annual Review?

The Annual Review itself is a process, (not just a meeting) and this process is not completed until the following steps have all been done.

Information must be gathered from parents and young people and from professionals about the EHC plan and then circulated two weeks before the meeting.
An annual review meeting must take place to discuss the EHC plan.
After the meeting a report of what happened must be prepared and circulated to everyone who attended or submitted information to be discussed.
After the meeting the LA reviews the EHC Plan
The LA must then notify the parent of the child or young person of their decision within four weeks of the meeting.

There are only 3 decisions the LA can make:

To maintain the EHC plan in its current format (not make any changes);
To amend the EHC plan (including change of named school in Section I)
To cease the EHC plan if they think it is no longer necessary for it to be in place

Who organises it?

The local authority can require certain nurseries and schools * to convene and hold the meeting on the local authority’s behalf.

*maintained schools, maintained nursery schools, academy schools, alternative provision academies pupil referral units, non-maintained special schools, independent educational institutions approved under Section 41 of the Children and Families Act 2014

They should also provide a list to The CCG (or, where relevant, NHS England) and Local authority officers responsible for social care for children and young people with SEN or disabilities

When should an Annual Review take place?

The local authority should provide a list of those requiring an annual review that term to the education setting at least two weeks before the start of each term.

The first review of the EHC plan must be held within 12 months of the EHC plan being finalised
Further reviews must be held annually within 12 months of the previous review.
For those under 5, reviews should take place every 6 months

A note about Early / Emergency Reviews

Sometimes, it might be necessary to ask for an early review. This may be because:

the child or young person’s education, health or social care needs have changed and are no longer accurately described in the EHC plan; or
the education, health or social care provision in the EHC plan is no longer meeting the child or young person’s needs.
If the child or young person has been excluded from school or is considered to be a risk of exclusion, this would also be a good reason to ask for an early review

Before the Annual review meeting

At least 2 weeks before the meeting:

An invitation to attend the annual review meeting must be sent to:

Child’s Parent or young person
Representative of school or other institution attended
LA SEN officer
Health Service representative
LA Social Care representative
Other individuals relevant to the review should also be invited (e.g. youth offending teams, job coaches etc)

AND – The school (or the LA) must seek advice and information about the child or young person prior to the meeting from all parties invited, and then circulate to all those invited.

Any professionals involved with the child or young person must co-operate with local authorities during reviews.

For looked after children the annual review should, where possible, coincide with the personal education plan (PEP) element of their Care Plan.
When a young person is over 18, the local authority must look at whether the educational or training outcomes specified in the EHC plan have been achieved.
Local authorities must also review and maintain an EHC plan when a child or young person has been released from custody. The LA must involve the child’s parent or the young person in reviewing whether the EHC plan still reflects their needs accurately and should involve the youth offending team in agreeing appropriate support and opportunities.

A note about Parent’s, children and young people’s views

The review is not just about how school has gone in the past year – it is to consider the progress towards the outcomes in the EHCP and what changes might need to be made to the support that is provided to help them achieve those outcomes, or even whether changes are needed to the outcomes themselves.

The short-term targets should also be looked at and changed if appropriate and the child’s aspirations should be discussed in case these have changed during the year.

Support for children and young people to engage in the meeting can come from parents or teachers or other independent support or contacts.

A resource for young people from the Council for Disabled Children

Parental Views Form

During the meeting

The meeting should be person centred, this means that the child or young person is central to the meeting.
The meeting is not about them but for them and a time to talk about how they can be supported to reach their outcomes.
The meeting should be held at a time and a place that is comfortable and suitable for their needs.
They should feel part of what is going on and encouraged to contribute.**
They can bring someone to support them if they wish to.

** It is a good idea to encourage children and young people to become involved in their review meetings as soon as they are able to – but certainly from about year 9 onwards if possible. They may only attend for a short time to start with, but this helps them become involved in the decisions that affect their lives.

Practical tips for the meeting

Take someone with you if you need support.
Take a list of questions with you.
Write down any notes that you think are significant or actions that are agreed.
Don’t be afraid to say what is on your mind.
Ask for things to be repeated or rephrased if needed.
You are the expert on your child!

See our previous blog for further meeting tips

Other things to note for special circumstances:

For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer.
From Year 9 onwards, the local authority has a duty to ensure that the annual review meeting “consider[s] what provision is required to assist the child or young person in preparation for adulthood and independent living”. Discussions about their future should focus on what they want to achieve and the best way to support them to achieve. Planning must be centred around the individual and explore the child or young person’s aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their ambition.
For all other phases of transfer, the deadline is 15 February in the year of transfer for the EHC Plan to be reviewed and amended.
For those transferring schools, after the review, the EHC plan should state that they will continue to attend their current setting until the end of the academic year (or another date if different), and then name the setting they will attend from the start of the next academic year.

After the meeting

The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting

The person leading the review must write a report.
This is sent to all who were invited to the meeting within 2 weeks of the meeting taking place.
The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting
The local authority must then Review the report whether it proposes to:

keep the EHC plan as it is (maintain)
Make changes to the plan (amend) or
Stop the plan (cease to maintain)

The Local authority must notify the child’s parent or the young person and the school/college of their decision within 4 weeks of the meeting (and within 12 months of the date of issue of the EHC plan or previous review).

If the LA have not informed you of their decision within four weeks of the annual review meeting taking place, then you should contact your Planning Coordinator in writing. Remember to keep a copy of any letter or email you send.

Amending the EHC plan

If the plan needs to be amended, the local authority should start the process of amendment without delay.

If the LA proposes to amend the EHC Plan, you should receive a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments (including evidence to support these). You may request a meeting to discuss these proposals if you wish. CoP 9.194

You must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. CoP 9.195

Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. CoP 9.196

Ceasing the EHC Plan

A local authority may cease to maintain an EHC plan only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person.

Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must:

inform the child’s parent or the young person that it is considering this
consult the child’s parent or the young person
consult the school or other institution that is named in the EHC plan

Where the child’s parent or the young person disagrees with the local authority’s decision to cease their EHC plan, they may appeal to the Tribunal. Local authorities must continue to maintain the EHC plan until the time has passed for bringing an appeal or, when an appeal has been registered, until it has been concluded.

What can I do if I disagree with the LA’s decision?

The letter you receive from the LA should state the reasons for any decisions and what you are able to do if you do not agree.

If you are not happy with the explanation or do not agree with their decision, we would recommend talking to your planning coordinator first.

If you still do not agree, you may also wish to consider mediation or appeal to the First-Tier Tribunal (SEND).

In terms of decisions made after a Review, parents and young people can appeal to the Tribunal about:

the description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified
an amendment to these elements of the EHC plan
a decision by a local authority not to amend an EHC plan following a review or re-assessment
a decision by a local authority to cease to maintain an EHC plan

For more detailed information around the Annual Review process as well as associated paperwork please look on the Local offer.

For leaflets about the Annual Review or Appeals as well as other leaflets please go to our Website.

If you would like to discuss anything related to an Annual Review, please contact us at SENDIAS by:

Telephone: 0330 222 8555 or email: send.ias@westsussex.gov.uk

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Guidance on temporary legislative changes relating to coronavirus (COVID-19) & EHC Need Assessments & Plans

A joint ministerial letter from the Department of Health & Social Care and the Department of Education was issued on the 30^th 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.”

Further Information

Annex A: details of the amendments to the existing Regulations

Council for the Disabled

COVID-19 and EHCPs

We are aware that there is a lot of information circulating at the moment so we want to keep this blog short but wanted to highlight a letter that was issued on 24^th March 2020 by Vicky Ford MP Parliamentary Under-Secretary of State for Children and Families as well as signpost you to the local information document recently issued by the Special Educational Needs Assessment Team (SENAT) here in West Sussex.

Included in the letter:

Government is working with Partnership organisations including National Network for Parent Carer Forums and the Council for Disabled Children
FAQs about supporting vulnerable children available
Household isolation advice available for those living in residential settings
Risk assessments for those with EHCPs re being at home or at school/college
Legal requirements on local authorities in fulfilling their duties in relation to EHC plans, modified.
DfE Coronavirus helpline
Council for Disabled Children, in partnership with Contact, to ensure that their websites and forums regularly update both families and services on information.

For local information about processes for EHC Needs Assessments and Plans in light of the COVID-19 virus, please see the West Sussex SEN and Assessment Team’s ‘information for families‘ document on our relevant Local Offer information page under ‘West Sussex Specific Information and Guidance’: :

Letter from Vicky Ford MP Parliamentary Under-Secretary of State for Children and Families:

Dear colleagues,

This is an open letter distributed through as many of our partner organisations as possible. I would be grateful if you could circulate it as widely as possible to children and young people with Special Educational Needs and Disabilities (SEND), their parents/carers and families, and all others who support them.

This is an unprecedented, uncertain and testing time for all of us due to the coronavirus (COVID-19) pandemic. It is particularly challenging for children and young people with SEND, their families, and those who work tirelessly to support and care for them.

This is why, over the past week, we have made announcements and issued guidance about how we will meet the needs of children and young people with SEND during this challenging time. As the Minister responsible for SEND, I wanted to write to let you know that we are committed to doing everything possible to support you during this difficult time.

We are working in partnership with many organisations, including the National Network for Parent Carer Forums and the Council for Disabled Children, to make sure we are focusing our efforts in the right places. In all our decisions, the needs of SEND children and young people and their families and carers, and safeguarding these vulnerable groups, are at the forefront of our minds.

The Government published guidance about supporting vulnerable children on 22 March. It includes a number of frequently asked questions and is available at https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-vulnerable-children-and-young-people .

We have also published new guidance that provides household isolation advice for children and young people who live in residential settings, and the staff that support them. This guidance is available at https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-isolation-for-residential-educational-settings

The guidance on supporting vulnerable children states that local authorities, nurseries, schools, special schools, colleges and other training providers should undertake a risk assessment to establish the individual needs of each child or young person with an Education, Health and Care (EHC) plan. This assessment should incorporate the views of the child or young person and their parents. This will inform the decision about whether they should continue in school or college, or whether their needs can be met at home safely.

If needs are best met at schools or colleges, we will support their school or college to meet their needs, wherever possible. For those on SEN support, schools, colleges and local authorities have discretion to use the same risk judgement to decide whether home or school is the safest setting for these children. It is, however, important that as many children as possible remain at home during this time in order to help reduce transmission rates.

On 19 March, the Government introduced new legislation into Parliament, in the form of the Coronavirus Bill (‘the Bill’), in response to the outbreak.

Our overwhelming aim for SEND, through the Bill and the proposed changes to regulations that are to follow, is to balance the needs of this vulnerable group to receive the support they need with managing the demands on local authorities and health bodies to respond to this outbreak. As a result, we have included in the Bill temporary emergency powers to enable us, where necessary, to modify the legal requirements on local authorities in fulfilling their duties in relation to EHC plans.

In practice, this will mean that where a local authority is, because of the outbreak, unable, for example, to put in place stated provision, they will need to use their reasonable endeavours to do this, but won’t be penalised for failing to meet the existing duty as set out in the Children and Families Act 2014. These emergency powers will only be exercised for the shortest period and where necessary, will be regularly reviewed. We will also be seeking to amend regulations on the timescales for EHC plan processes where this is appropriate because of COVID-19. I want to reiterate that these decisions are not taken lightly but I believe strike the right balance in these difficult times.

I encourage you to keep up to date by regularly checking the gov.uk webpages and raise awareness of the DfE Coronavirus helpline we have established for local authorities, providers and parents to get information on the latest Government advice. The number is 0800 046 8687, and lines are open 8am-6pm (Monday – Friday), and 10am – 4pm (Saturday and Sunday).

I realise that the impact of these extraordinary circumstances on this group of children and young people can be particularly acute. This is why I have asked the Council for Disabled Children, in partnership with Contact, to ensure that their websites and forums regularly update both families and services on information, which is available to support them. I have also asked them to collate any questions and queries from stakeholders so that we can maintain as many routes of contact as possible into Government to ensure our actions continue to be focused on prioritising where help is most needed.

The challenges we are now facing serve to further highlight the importance of ensuring the system of support for children and young people with SEND is as effective as possible in the future. Rest assured that completing our review of the SEND system remains a priority for me and for the Government. In light of the current situation, we will think carefully about the right way and timescale to do this. Right now my focus, like yours, is on managing the current situation and keeping vulnerable children safe and supported.

I know that by working together, we can ensure that children and young people with SEND receive the support they need during this difficult time.

Yours sincerely,

Vicky Ford MP – Parliamentary Under-Secretary of State for Children and Families