Covid-19 - Changes triggered for children/young people with SEND

We last wrote about The Coronavirus Act 2020 and what it meant for children and young adults with special educational needs and/or disabilities here.

Since then, there have been two key changes:

1)The Secretary of State for Education has now triggered The Coronavirus Act 2020 Modification of section 42 of the Children and Families Act 2014 (England) Notice 2020.

This changes the absolute duty for Local Authorities (LA) to make provision set out in an Education, Health and Care Plan (EHCP) to LAs using ‘reasonable endeavours’. The changes came in force on 1 May 2020 and will be in place until 31 May 2020. A further notice can be issued after 31^st May.

What does this mean?

For as long as the notice is in force, LAs will discharge their absolute duty to make provision under s42 Children and Families Act 2014 provided they use ‘reasonable endeavours’ – not ‘best’ endeavours, just ‘reasonable’ endeavours.

Section 42 Children and Families Act 2014 imposes duties on the LA to secure special educational provision set out in the Plan (under Section F of the Plan) and on the responsible commissioning health body (Clinical Commissioning Group, CCG) to arrange health provision (set out under Section G of the Plan). The section 42 duties do not apply where parents have made their own suitable alternative arrangements e.g. arranged for the delivery of their own private education or therapies.

The notice states that these changes are necessary because of reduced/redeployed staffing. Also, for those children not attending school, LAs cannot continue to deliver what they would have done at school. Even for those attending school, social distancing has made it difficult to continue delivery of provision.

The notice also states that the notice enables LAs and CCGs to arrange reasonable alternatives to the usual provision and gives examples of the delivery of therapies remotely and/or using video.

Note that the notice does not absolve LAs entirely of their duties. LAs must use reasonable endeavours to secure or arrange provision – LAs and CCGs must consider for each child what they can reasonably provide in the circumstances during the notice period. Some provision might be delivered but other provision may not be possible or may be different to that set out in the EHCP. In deciding what can/cannot be delivered, LAs and CCGs must consider local circumstances, the needs and specific circumstances of the child and views of the child and parents over what provision might be appropriate. Statutory bodies should also keep under review the provision being delivered under the reasonable endeavours duty. Blanket policies must not be applied.

2) The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 also came in force on 1 May 2020. The Regulations will be in place until 25 September 2020.

The changes relax time periods set out in the SEND Regulations 2014 where the ‘coronavirus exception’ applies i.e. where it is not reasonably practicable to meet time requirements for coronavirus related reasons. Time periods are changed to ‘as soon as reasonably practicable’.

Some of the time periods relaxed are as follows:

EHC needs Assessment

• LA to respond to request within six weeks.
• Statutory bodies to respond to consultations/request for information within six weeks of the request.
• LA to notify parents whether they will issue a Plan within 16 weeks of receipt of the request.

Annual Reviews/reviews

• LA’s duty to review an EHCP within a year of issue or review.
• Schools to complete an Annual Review report within two weeks of the review meeting.
• LAs to make a decision within four weeks of the Annual Review.
• LAs to notify parents whether or not it is necessary to reassess within 15 days of receiving a request to re-assess.

Mediation prior to an appeal

• Parents to contact mediation within two months of the LA decision letter.
• Mediation to issue a mediation certificate within three working days.
• LA to arrange mediation within 30 days from notification of parents wish to pursue mediation.
• Mediation in relation to health-only issues – LA to inform the health commissioning body that parents wish to pursue mediation and for the health body to arrange mediation within 30 days of notification

SEND Tribunal appeals

• LA’s duty to follow a Tribunal Order to issue a Plan or make a decision within a time period including issuing an amendment Plan following a Section B, F, appeal, and Section I, naming a school in the Plan.
• Any time scales in relation to a SEND appeal where it is not reasonably practicable to meet a requirement due to coronavirus,
• Duty of statutory bodies to respond to Tribunal recommendations under the Pilot in relation to health and social care

Moving to a new LA/new provision

• Where a child or young person moves to a new LA, the old LA to transfer the EHCP to the new LA 15 days prior to the move. If the CCG is unable to make provision in the Plan, then it must within 15 working days request the new LA makes an EHC needs assessment or reviews the Plan.
• Where a young person is moving to higher education, the LA’s duty to disclose a copy of the Plan to the new placement within 15 working days of the request.

Government guidance on the full temporary changes to time periods can be found here.

Government guidance on overall temporary changes can be found here.

Changes in context

It is important to understand that these changes are temporary and that the law has been modified but not disapplied. There should be continuation of meaningful discussion with the LA around your child’s needs and provision. Delivery of provision and timescales will require some flexibility but remember that it is a fundamental principle of the SEND system that children and their parents must be fully involved in decisions about their support. Time period changes are only to be altered where in particular cases it is not reasonably practicable for a LA, or CCG to meet timescales due to coronavirus related reasons and even then, functions must still be completed as soon as reasonably practicable.

Key elements of the processes relating to EHC needs assessments and EHCPs remain unchanged. For example, the LA must still consider requests for EHC needs assessments or a re-assessment. LAs must still secure advice as part of the assessment process. A final EHCP must still include all the required advice and information. Reviews of EHCPs must still take place, subject to flexibility around timings.

Rights of appeal to the SEND Tribunal remain unchanged.

A key question will be 'what are reasonable endeavours’? We would expect it to be reasonable for LAs to deliver provision unless it shows it cannot and if parents propose alternative ways of delivering provision, LAs should be willing to consider the proposal and have meaningful dialogue.

The Boyes Turner Education Team is working remotely during this time and fully able to continue to deal with new enquiries. We can help at whatever stage you are with your EHCP and can be contacted on 0118 952 7219 or via senexpertsolicitors@boyesturner.com