by Douglas Silas, specialist SEN solicitor
Here is my update for this week.
This week's update is a very long and detailed one - so best to grab that cup of coffee or tea before starting to read it!
I know that last week in my update I spoke about a lot of different issues that were in the news, but this week I want to refocus things on what is happening in relation to SEN law and concentrate on the one most important development this week.
I hope that this helps people.
1. What has happened this week?
As many people had been fearing recently, there was the issuing on 30th April of an open joint letter from Helen Whately MP. the Minister for Social Care and Vicky Ford, the Parliamentary Under-Secretary of State for Children and Families, addressed to: 'To all children and young people with special educational needs and disabilities (SEND), their parents/carers and families, and others who support them', which said:
'As Ministers responsible for children and young people with SEND and their health needs, we wanted to write to let you know that we are committed to doing everything possible to support you during this difficult time.
None of us have faced a challenge like this in our lifetimes. Our response to the pandemic has different impacts on different people, but we know that these have been particularly hard for those children and young people with complex health needs, learning disabilities, autism and behaviour that challenges, and their families.
Supporting the most vulnerable children, young people and adults is a priority for us at this time. We want to ensure that children and young people with SEND are supported as well as possible in these difficult circumstances and want to update you on some changes to the law and other actions we are taking in order to enable this.
Changes to the law
We are temporarily changing the law regarding Education, Health and Care (EHC) plans in two key ways. Firstly, we have issued a notice 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 and may be extended.
Secondly, 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 we will be keeping this under review.
We have published detailed guidance alongside these temporary changes. A link to this guidance can be found at: https://www.gov.uk/government/publications/send-code-of-practice-0-to-25.
We know that as parents and others involved in the care of this vulnerable group, your primary concern is their health and wellbeing. As the Ministers for SEND and Care, we share those concerns and want to reassure you that these changes are temporary and all other requirements of the EHC process remain unchanged. The changes are designed to balance the needs of children and young people with the ability of local authorities and health services to respond to the outbreak.
Our aim is that, as far as practicable during this difficult period, EHC processes continue so that children and young people still get help and support whilst accepting that this may have to be done differently. We expect commissioning bodies – and the services they commission – to maintain education, health and care provision for vulnerable children, and also to extend extra support, where possible, to families in most need – recognising that home isolation is extremely hard for many children and young people with SEND and their families.
In addition, we want to emphasise that co-production, partnership and communication remain critical.
Keeping children and young people with EHC plans in education
For those with EHC plans, we are asking local authorities and educational providers to work with families and the child or young person to carry out an individual risk assessment to judge whether the child or young person’s needs can be more safely met at home or at their educational setting. We recognise that some children and young people may be better off with the greater continuity and structure that education brings and that some of those with the most complex needs may need access to support that cannot be provided at home.
We have provided new guidance to help with that risk assessment process:
For parents whose children are not in school, the Department for Education has published the guidance and an initial list of resources to support access to high quality remote education during school closures: https://www.gov.uk/government/publications/coronavirus-covid-19-online-education-resources/coronavirus-covid-19-list-of-online-education-resources-for- home-education.
Local authorities across England will receive a further £1.6 billion to help them to deal with the immediate impacts of coronavirus (COVID-19). This takes the total funding to support councils to respond to the pandemic to over £3.2 billion. Local authorities are best placed to decide how to meet service pressures in their local area, including within SEND and children’s social care.
We have confirmed that schools and colleges will continue to receive their usual funding, including from the high needs block, to support them through this period of disruption: https://www.gov.uk/government/publications/coronavirus-covid-19- financial-support-for-education-early-years-and-childrens-social-care.
We are also providing financial support to schools to meet additional costs arising from Covid-19: https://www.gov.uk/government/publications/coronavirus-covid-19- financial-support-for-schools.
We hope that this letter has been helpful in setting out what we are doing at this time to support children with SEND. At the end of this letter, there are some key resources that may be helpful. Right now, our focus, like yours, is on the current situation and keeping you and your children safe and supported. We know that by working together, we can ensure that children and young people with SEND receive the support they need during this difficult time.'
The Government also issued guidance that day on a webpage entitled: 'Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)', which summarises things there in detail as follows:
'Purpose of this guidance
Some aspects of the law on education, health and care (EHC) needs assessments and plans are changing temporarily 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 (COVID-19).
These changes are being brought about by:
a) 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 (duty to secure special educational provision and health care provision in accordance with EHC plan). 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.
b) The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’). This instrument temporarily amends 4 sets of Regulations that specify timescales that apply to local authorities, health commissioning bodies and others: principally for various processes relating to EHC needs assessments and plans. Where it is not reasonably practicable or is impractical to meet that time limit for a reason relating to the incidence or transmission of coronavirus (COVID-19), the specific time limit (such as to issue a plan to someone eligible for one within 20 weeks of the initial request) in the regulations being amended will not apply. Instead, the local authority or other body to whom that time limit applies will have to complete the process as soon as reasonably practicable or in line with any other timing requirement in any of the regulations being amended (see Annex A: details of the amendments to the existing Regulations).
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.
The target audience for this guidance is:
- families and parent carer forums
- SEND Information, Advice and Support Services (SENDIASS)
- local authorities (both their SEND and social care services, at a strategic and operational level)
- health commissioning bodies (again, at both strategic and operational level)
- early years providers
- schools and colleges
- other education settings
- others who contribute advice and information to EHC needs assessments, such as educational psychologists and other health care professionals
- mediation advisers
This guidance also confirms which key elements of the processes over EHC needs assessments and plans are unchanged. Notably this includes that a local authority must still consider requests for a new EHC needs assessment, must still secure all of the required advice and information in order to be able to issue a plan, and must have regard to the views and wishes of a child, the child’s parent or a young person when carrying out its SEND functions under the Children and Families Act 2014.
Given that the changes to legislation are temporary, we will not be updating the statutory guidance, the SEND code of practice: 0 to 25 years. We 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.
We will keep this guidance under review.
This document is part of delivering on our ongoing commitment to ensuring that children and young people with complex needs are supported effectively during this national health emergency. As such, it sits alongside a range of other guidance from the government on how to ensure the safety of vulnerable children and young people, such as:
- Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak
- Actions for schools during the coronavirus outbreak
- Coronavirus (COVID-19): SEND risk assessment guidance
The coronavirus (COVID-19) outbreak has put significant extra pressure on the ability of local authorities and health commissioning bodies to secure, or arrange, in full the provision set out in EHC plans; and to meet the statutory timescales for EHC needs assessments and plans. Coronavirus (COVID-19) has had a major impact on education settings, with the vast majority of children and young people not currently attending their early years provider, school or college. Coronavirus (COVID-19) has also affected the level of service that can be provided by those (such as educational psychologists and other health professionals) who provide advice and information as part of the process of assessing an individual’s EHC needs.
In recognition of these factors, the government is legislating so as to strike the right balance during the outbreak of coronavirus (COVID-19) between:
- the needs of children and young people with SEND to be protected and receive the right support in a timely way
- managing the demands on local authorities and health bodies to respond to the outbreak.
It is only those aspects of the law relating to EHC needs assessments and plans listed above that have changed temporarily because of the coronavirus (COVID-19) outbreak: the duty to secure or arrange provision and most of the timescales for particular processes. All other aspects of SEND law remain unchanged.
Themes in this guidance
Throughout this guidance we have sought to emphasise:
- it is only some aspects of the law on EHC needs assessments and plans that have changed temporarily; and where this has happened, the law has been modified, not disapplied. The duties in law over EHC needs assessments and plans have not been ‘turned off’
- the ongoing importance of co-production with children and young people with SEND and their parents
- that the impact of coronavirus (COVID-19) may mean that the process and provision in place previously may for the time being need to change
- how important it is, in identifying the best way forward and giving the families clarity about what is happening, for there to be effective and timely communication between:
-- local authorities (SEND and social care services) and health commissioning bodies
-- families of those with SEND
-- all those others involved in the processes for EHC needs assessments and plans, such as education settings and other health professionals
The importance of co-production
At this challenging time, it is even more important that local authorities, health services, education settings and all those involved in the processes relating to EHC needs assessments and plans work with families to identify appropriate ways forward. It is a fundamental principle of the SEND system that children and young people with SEND and their parents need to be fully involved in decisions about their support. Co-production and effective communication remain key, both at the strategic level and in relation to individual cases.
Parent carer forums have an important role, working with local authorities and health commissioning bodies, to gather and feed in parents’ views on what can realistically be provided to children and young people in their area when the usual ways of working are under such strain.
Local authorities, health services and the other bodies involved in the processes relating to EHC needs assessments and plans should communicate regularly with the families of those children and young people with EHC plans, or who are being assessed for plans or who apply for an EHC needs assessment. Where the changes in the law affect what families experience, they need clarity as to:
- what provision will be secured for each child and young person and the reason for any difference from what is specified in the EHC plan
- when decisions will be made as part of the various processes relating to EHC needs assessments and plans
It is also crucial that local authorities ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate effectively in discussions and decisions about their support. The local SENDIASS has a critical role to play at this time. It is important that local authorities ensure that these services are sufficiently resourced to support families.
Co-operation between local authorities and early years providers, schools, colleges and other education settings
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 do receive appropriate provision.
The time-limited duty to use ‘reasonable endeavours’ to secure or arrange provision in an EHC plan
The notice by the Secretary of State for Education
The Coronavirus Act 2020 provides for various emergency powers for the Secretary of State for Education. One is that where it is appropriate and proportionate in all the circumstances relating to the incidence or transmission of coronavirus (COVID-19), he may by notice temporarily modify any duty imposed on a person by section 42 of the Children and Families Act 2014 (duty to secure special educational provision and health care provision in accordance with EHC plan). This duty would then be treated as discharged if the person has used ‘reasonable endeavours’ to discharge the duty. The Secretary of State has issued such a notice, to be in force from 1 May to 31 May 2020 (inclusive). The Secretary of State can issue a further notice if need be.
The notice does not absolve local authorities (for special educational provision and social care) or health commissioning bodies (for health care provision) of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period. For some individuals, this will mean that the provision specified in their plan can continue to be delivered; but for others (because of the impact of coronavirus (COVID-19) on local authorities or health commissioning bodies) the provision may need temporarily to be different to that which is set out in their EHC plan.
Once the notice expires or is cancelled, local authorities and health commissioning bodies would in all cases need to secure or arrange the full range of provision, as specified in the EHC plan.
Local authorities’ and health bodies’ decision-making process
Coronavirus (COVID-19) may make it more difficult for a local authority or health commissioning body to secure or arrange all the elements of the specified special educational and health provision in an EHC plan as required by section 42 of the Children and Families Act 2014 (the ‘modified s42 duty’). The Secretary of State for Education has listed some of the reasons why this might be more difficult in the notice:
- the child or young person is not currently attending an early years provider, school, college or other setting
- the following of ‘social distancing’ guidelines may disrupt education settings’ normal programmes for those who are still attending and make certain interventions impractical
- the resources and services to secure the provision are reduced, for example because of illness, self-isolation or the need to direct staff resource at responding to the pressures generated by coronavirus (COVID-19)
In deciding what provision must be secured or arranged in discharge of its modified s42 duty, the local authority and health commissioning body should consider:
- the specific local circumstances (such as workforce capacity and skills and that of others whose input is needed to EHC needs assessments and plans processes, temporary closures of education settings, guidance on measures to reduce the transmission of coronavirus (COVID-19) and other demands of the outbreak)
- the needs of and specific circumstances affecting the child or young person
- the views of the child, young person and their parents over what provision might be appropriate
The local authority or health commissioning body should keep a record of the provision it decides it must secure or arrange. It should then:
- confirm to the parents or young person what it has decided to do and explain why the provision for the time being differs from that in the plan
- keep under review whether the provision it is securing or arranging means that it is still complying with the reasonable endeavours duty, recognising that the needs of a child or young person may change over time (particularly in the current circumstances) as may the availability of key staff or provision
Where the needs of the child and young person may have changed, it may be necessary for the local authority to conduct an early review of the EHC plan.
The modified s42 duty relates to the provision for each individual child and young person. Local authorities and health commissioning bodies must not apply blanket policies about the provision to be secured or arranged.
Securing or arranging provision in an EHC plan under the modified s42 duty
In some cases local authorities and health commissioning bodies may be able to secure or arrange the provision as set out in the EHC plan. Where, however, the full provision in an EHC plan cannot be delivered or delivered in the way described in the plan, local authorities, health commissioning bodies, education settings and others may find the framework below useful in exploring with parents and the child or young person what provision can reasonably be secured or arranged. There should be a focus on:
- the provision that the EHC plan describes as needed by the individual child or young person
- the availability of those who should usually deliver what is needed
- what can be done to deliver provision differently
The framework acknowledges that what constitutes reasonable endeavours will vary according to the needs of each child and young person and the specific local context. In deciding what provision would be required, it might be appropriate to consider the following:
Securing something different to the provision stated in the plan, for example in relation to availability of staff, availability of technology and any significant risk that may cause harm
Location where provision is to be provided may be altered, for example early years provider, school, college, community setting, home or clinic
Frequency and timing of provision may be altered or modified in the light of available staff and risks that may cause harm
Method of delivery may be altered, for example virtual rather than face-to-face and smaller rather than larger groups for teaching (where this can be done following the guidance on reducing transmission of coronavirus (COVID-19))
Changes to the person delivering the provision, for example a learning assistant under virtual supervision rather than a specialist therapist or teacher'
The guidance then goes on to look at: 'Examples of alternative arrangements' in some detail which you can read for yourself if necessary.
It then continues as follows:
'Timescales for EHC needs assessments and plans
Description of the changes to the Regulations
In addition to the changes to the law about securing or arranging provision in EHC plans, from 1 May to 25 September 2020 (inclusive) the Regulations which provide most of the statutory timescales for the EHC needs assessments and plans processes will be modified. This modification is different to that delivered by the notice in a number of ways, notably:
- the law is only changed where in a particular case it is not reasonably practicable or impractical5 for a local authority, health commissioning body or other body to discharge its duties for a reason relating to the incidence or transmission of coronavirus (COVID-19)
- the modification is to the timing. Where it is not reasonably practicable or impractical to conclude an action within the statutory timescale – for example, 6 weeks for a decision whether to make an EHC needs assessment – because of the incidence or transmission of coronavirus (COVID-19), the local authority or other body to whom that deadline applies will instead have to complete the process either as soon as reasonably practicable or in line with any other timing requirement in the regulations being amended. Further details are set out in Annex A: details of the amendments to the existing Regulations. Some of the processes relating to EHC needs assessments and plans already have allowable exceptions to the timescales. The changes in the law provide for an additional exception to these processes where delay is because of coronavirus (COVID-19)
- the Secretary of State for Education must review the effectiveness of the changes to the regulations
- the changes are for the period 1 May to 25 September 2020 (inclusive)
To illustrate how the amendments to the law will work:
- where a local authority has decided that it is necessary to issue an EHC plan following an EHC needs assessment the duty has been to do so as soon as practicable but in any event within 20 weeks6 of an initial request. The Amendment Regulations7 provide that if the incidence or transmission of coronavirus (COVID-19) makes it impractical for the local authority to do so within the 20 weeks they must discharge their duty to do so as soon as practicable
- where a request is made to a local authority to re-assess educational, health care and social care provision, the duty has been to notify the child’s parent or the young person within 15 days8 of the request. The gloss9 to the duty in Regulation 2A of the Amendment Regulations, that will change the way in which the provision should be read, applies here. It means that if it is not reasonably practicable to complete this process within the 15 days because of the incidence or transmission of coronavirus (COVID-19), the local authority must do so as soon as reasonably practicable
The timescales in the Regulations being amended relate to the following:
- the handling of requests for EHC needs assessments, decisions whether to issue plans and the preparation and issue of plans
- annual reviews of plans
- the processes relating to mediation
- the processes where there is a change of local authority or health commissioning body for a plan
- the process for a local authority reviewing for the first time the making and use of direct payments from a Personal Budget that is part of an EHC plan
- the actions that the local authority and health commissioning body must take when the First-tier Tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan (as part of the National Trial, which continues)
The Regulations being amended include those that set out the processes over EHC needs assessments and plans for detained persons (the Special Educational Needs and Disability (Detained Persons) Regulations 2015).
The duties over timescales apply variously to:
- local authorities (SEND and social care services)
- health commissioning bodies
- those who provide advice and information for EHC needs assessments, including educational psychologists, other health professionals and education settings
- parents or young persons (when requesting a mediation certificate)
- mediation advisers
Annex A: details of the amendments to the existing Regulations sets out the full list of regulations that have been changed. For detail of what exactly has changed, refer to the Amendment Regulations themselves.
How the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 can affect timescales for EHC needs assessments and plans processes
Process for handling a request for an EHC needs assessment and the issue of a plan under regulations 4(1), 5(1), 10(1) and 13(2) of the Special Educational Needs and Disability Regulations 2014
The local authority needs to decide whether to proceed with an EHC needs assessment as soon as practicable and in any event within 6 weeks of a request (Regulations 4(1) and (5)(1)). If the local authority ultimately decides, following an assessment, to issue a plan, it must issue the plan as soon as practicable and in any event within 20 weeks of the request for an assessment (Regulation 13(2)).
Exception relating to coronavirus (COVID-19)
If it is impractical for the local authority to meet the initial 6 week deadline because of a reason relating to the incidence or transmission of coronavirus (COVID-19), then it must instead reach that decision as soon as practicable.
When one process with a statutory deadline concludes and a further process begins: decision on whether to issue a plan following an EHC needs assessment
A reason related to the incidence or transmission of coronavirus (COVID-19) may make it impractical to complete the next stage of the process on time. In such a situation, the local authority will need to proceed to conclude the next stage as soon as practicable rather than within the statutory deadlines (16 weeks if it decides not to issue a plan, 20 weeks otherwise) (Regulations 10(1) and 13(2)).
Cases in progress on 1 May 2020
The Amendment Regulations will come into force on 1 May. If consideration of a request for an EHC needs assessment or one of the processes that may follow is in progress on that date, then the relevant exception to the timings in the Amendment Regulations could apply if coronavirus (COVID-19) had caused delay. This would depend on the facts of the case.
If the final deadline (such as the end of the 20 weeks) had passed before 1 May, the relaxations to timescales for a reason relating to coronavirus (COVID-19) made by the Amendment Regulations could not apply because they were not in force then.
Key elements of the processes relating to EHC needs assessments and plans are unchanged
These temporary changes to the law 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 plans11 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.
Examples of how local authorities might need to adapt how they manage the processes relating to EHC needs assessments and plans
New ways of working are needed in the current exceptional circumstances. Some local authorities are establishing virtual advisory panels by a secure virtual meeting platform to assist with decision-making. Many already have arrangements to share information in advance through secure electronic methods. Where sufficient recent information is not already available, professionals may be able to carry out observations of a child if he/she is still in a setting where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19). Alternatively, information could be gathered by phone or by a virtual meeting. To help manage demands on services, where services use templates for their advice and information, these might need to be adapted for use during the outbreak so that reports are more concise whilst still containing the essential information about the child or young person’s needs, provision, and outcomes.
Annual reviews of EHC plans
There is a power12 under the Coronavirus Act 2020 for the Secretary of State for Education by notice temporarily to disapply the duty to conduct annual reviews. However, he has not issued a notice under this power at this point in time, so the annual review 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.
Many local authorities have been working on improvements to the timeliness and quality of annual reviews and will want to continue to build on this work to manage reviews effectively during the outbreak. For example, it may be appropriate to use a simpler format to gather information electronically and to hold the meeting by phone or as a virtual meeting. Professionals contributing to the review may need to base that on the information already available and discussion with the family as they may not be able to meet the child or young person. While meetings might take a different format, they should still involve all the key professionals wherever possible.
Local authorities should identify priorities for review, which may include:
- children and young people with significant changes of need or circumstances
- looked after children
- children and young people in residential provision
- children and young people in out of area provision, especially independent and non-maintained provision
Local authorities must already have completed this year’s required transfer reviews for a child or young person moving between key phases of education (transfers into or between schools, moves from secondary school to a post-16 institution or apprenticeship, or moving between post-16 institutions). There is no change to the statutory deadlines for these reviews. Where, exceptionally, completion has been delayed, these transfer reviews need to be finalised as a priority.
Implications for early years providers, schools, colleges etc
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.
We therefore expect that, 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.
Appeals to the First-tier Tribunal (SEND): no change
Rights of appeal to the First-tier Tribunal (SEN and Disability) remain unchanged.
HM Courts and Tribunal Service has confirmed that its service will continue during the outbreak and that the tribunal is making efforts to conclude as many appeals as possible, particularly phase transfer reviews.
In the same way that local authorities are finding new ways of working remotely, 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 as now that fall within its remit. These have not been changed.
The national trial, which extends the power of the First-tier Tribunal (SEND), is continuing. The trial provides that as part of a special educational appeal, the tribunal will be able to make non-binding recommendations on the health and social care aspects of EHC plans. These recommendations need to be considered in the usual way by the responsible health and social care bodies and, where agreed, included in the final EHC plan. The modified s42 duty will then apply.
The Amendment Regulations will temporarily modify current timescales for actions that local authorities and health commissioning bodies must take where the tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan.
Annually publishing a response to comments on the SEND Local Offer
The Amendment Regulations also provide that local authorities can take more than a year to publish their response to comments (from those with SEND and their parents) on their SEND Local Offer if it is not reasonably practicable to meet that deadline for a reason relating to the incidence or transmission of coronavirus (COVID-19). Where such an exception does apply, the local authority must publish the comments as soon as reasonably practicable.'
2. What does this all mean?
The best summary I have found is on the CDC (Council for Disabled Children) website entitled: 'Temporary changes to the law on Education, Health and Care needs assessments and plans', which said:
'The government has today announced temporary changes to the law on Education, Health and Care (EHC) needs assessments and plans. This is to give local authorities, health commissioning bodies, education settings and others who contribute to these processes more flexibility in responding to the demands placed on them by coronavirus.
The Secretary of State for Education issued a notice 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. The modification to Section 42 means 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.
There will also be changes in the Special Educational Needs and Disabilities Regulations, temporarily amending the statutory timescales for various EHC needs assessment and plan processes. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’) temporarily amends four sets of Regulations that specify timescales that apply to local authorities, health commissioning bodies and others: mainly for various processes relating to EHC needs assessments and plans.
It is important to note that this guidance also confirms which key elements of the processes over EHC needs assessments and plans are unchanged. Notably this includes that a local authority must still consider requests for a new EHC needs assessment, must still secure all of the required advice and information in order to be able to issue a plan, and must have regard to the views and wishes of a child, the child’s parent or a young person when carrying out its SEND functions under the Children and Families Act 2014.
This non-statutory guidance provides a summary of these legislative changes and sets out the key implications for all who play a part in the processes relating to EHC needs assessments and plans.
This is essential reading for parent carers, young people and professionals and practitioners in the education, health and social care and VCS sector.'
It is probably too early for me to talk to you yet about what this all really means in practice as I am afraid that I will probably need a little while to asorb everything.
However, it is very important for me to point out that these changes are only meant to be temporary...
3. Where can I find further information?
There isn't really much more that I can say in this update now.
However, as I always like to do at the end of my updates, I would again remind you of the very useful resources and information provided on the following websites:
- Council for Disabled Children
- Special Needs Jungle
I would also highlight again the fact that you can now get digital copies of the magazines: SEN Magazine and Autism Eye which are both very helpful to any parents or professionals involved with children/young people with SEN.
Remember also, that there are other videos on this website, especially the one at the top of this page which explains the coronavirus and its effect clearly to children.
Keep safe until next week.
With best wishes
P.S I understand that there are a number of educational or other useful resources now on the web - I would be very grateful if you could let me know of any that people are finding useful, so that I can direct others to them.
P.P.S. I also want to highlight again the fact that there are currently a lot of scams out there, both online and through texts/WhatsApps. Please be extremely careful and help yourself and others not to become victims. You can learn more at: www.FriendsAgainstScams.org.uk.
We are now moving towards the end of the chronological year 2018 (don't worry, the academic year 2018/19 lasts until July 2019!)
So you will not hear from me now again until my Spring SEN Update in January 2019.
In this SEN Update, you will find sections entitled:
As I always say, I know how busy everyone is, so please feel free to read just the sections that are of interest to you or read everything; the choice is always yours.
Don’t forget, to ensure that you never miss out on one, you can get my SEN updates personally by completing your email details below, by using our App ‘SEN.fyi’, or by following me on one of the Social Media platforms that I use, at the top of this page.
You can also easily share this update with others (please only do so if it may be relevant to them) by using one of the icons usually to the right or at the bottom of this page, or on our 'SEN.fyi' App (by using the ‘share’ feature at the bottom of the page).
THIS AFFECTS US ALL (SEN FUNDING)
There has been a lot of talk recently in the press about SEN Funding difficulties, including mentions of some Local Authorities (LAs) being on the verge of bankruptcy. The word ‘crisis’ has been used a lot and there has also been talk about lack of SEN funding affecting schools.
I am aware also of recent legal actions brought against LA SEN budget cuts.
The article that caught my eye was one entitled: “Special needs pupils being failed by system 'on verge of crisis' (rising demand puts councils in England at risk of bankruptcy, Guardian investigation reveals)” that stated:
‘Parents of children with SEND are increasingly locked in prolonged and costly disputes with councils across England who are too often failing to deliver on their legal obligations.
As a result, many of the most vulnerable children in society end up without the support to which they are entitled, and are out of school for months – even years – as parents battle to secure the right provision to meet their child’s needs.’
Unfortunately, I see this happening all the time (and I am sure that many of you do too); but we must recognise the extensive and increasing duties for LAs/Schools, who are also dealing with significant funding cuts.
There just seems not to be enough money to go around sometimes. This is something that affects us all.
At the same time, I have seen articles about disabled people not getting services they require. One article said that one in five disabled people are having their rights violated and feel excluded from society in a ‘damning’ report by the Equality and Human Rights Commission, presented to the United Nations.
‘“more and more disabled people are finding it difficult to live independently and be included, and participate, in their communities on an equal basis.”’
I have tried to look at these problems objectively and see if there may be a solution to this problem.
There is no point in me talking about increasing efficiencies - I know that there is only so much you can do to remove slack in any system and we all (particularly LAs and schools) have been tightening our belts again and again these past few years.
It seems to me though that the problem may be one of forward-planning and self-fulfilling prophecies (some may call it a ‘vicious circle’).
Let me explain...
If budgets are increasing because of more ‘dependent’ disabled people reliant on social care funding from LAs, then the trick may be to try and teach children/young people with SEN to be more ‘independent’ earlier; and thereby reduce their reliance on the state later in life.
‘Front-loading’ the system in this way, if possible, may help in the long run to reduce financial burdens on both LAs and the Government in future years.
In fact, this could also help some people into work who then pay taxes, who would not be able to otherwise. So then, rather than taking ‘out’ of the system, they will be putting ‘into’ it.
This seems like a win-win to me. Remember, the old adage goes: “a little pain now, saves a lot of pain later’.
I know this may seem simplistic, but although I was pleased to hear the recent budget say that austerity is at an end, I think we should all still be concerned about ongoing SEN funding crises and the impact and consequences of cuts during recent years.
THIS MAY HELP MANY PEOPLE (‘ACTIVE LISTENING’)
One advantage of doing what I do, is that I am asked to speak occasionally at conferences about SEN Law. The advantage is that I usually get to stay before or after my slot to hear other speakers talk.
Recently, I was asked to speak at a conference hosted by the ‘CEN SpLD’ group established through the Royal College of Speech and Language Therapists (CEN SpLD stands for ‘Clinical Excellence Network for Specific Learning Difficulties’).
One of my fellow speakers was a very experienced speech and language therapist called Maggie Johnson. Her talk was entitled: ‘Active Listening for Active Learning’ and, as I was very taken by some of the things she said, I would like to share them here with you, as I think that this may help many people.
Although the talk was focusing on working with children/young people with Specific Learning Difficulties, or other children/young people with Speech and Language difficulties, I think it will be of benefit also to children/young people with SEN and, dare I suggest, even to lots of us personally, as well as professionally!
Maggie firstly introduced the concept of ‘Active Listening’ by describing it as a two-way process involving listening, decision-making and participation. She said that it means recognising when you have not heard something properly (or do not understand something properly) and then seeking to put it right - she called this: ‘Conversational Repair’.
Maggie pointed out how curriculums are usually verbally mediated and can therefore be sometimes hard to understand for children/young people with SpLD/Speech and Language difficulties/other types of SEN. She then asked us how we would cope in a situation, where we did not understand something said to us.
She also pointed out that, whilst we sometimes think that a child/young person does not understand something because they are not paying attention, it may actually be that they are not paying attention because they do not understand something!
Maggie said that this was specifically a problem for children/young people she worked with and spoke about the importance of empowering children/young people with difficulties, to ask for clarification if they did not understand something.
Turning to the speaker, standing close to them and being aware that messages cannot always be understood, may also help us identify reasons for non-comprehension, or breakdowns in communication and help us address problems.
Maggie put across her subject very well, including playing videos of children she had worked with, where she had deliberately confused or withheld instructions, so that we could see for ourselves their responses, both before and after ‘Active Listening’ input. This really helped me understand things better.
Very simplistic you may think again, but this makes so much logical sense when you reflect on it, doesn’t it? Think about it - how can you pay attention to something if you do not understand it?
We have all been in situations like this, where we have ‘switched off’ if we do not understand something. Why do we expect a child/young person with SpLD/SEN to be any different?
It would take me far too long to detail here everything else that Maggie said, but if this is something of interest to you, there is her book called: ‘Active Listening For Active Learning’ which you can find here.
PLEASE BOOK EARLY THIS YEAR (SEN LAW CONFERENCE)
As many people know, together with the IPSEA and Matrix, I helped put on the first new annual SEN Law Conference at the Law Society in Central London last March 2018.
You may recall that it was a specialist conference that provided legal and policy updates on all aspects of this fast-moving developing area of law and was aimed at professionals working with:
Speakers included representatives from the Department of Education, a Local Authority, the Local Government & Social Care Ombudsman, the SEND Tribunal etc., as well as IPSEA and Matrix.
As this was a new annual SEN Law Conference for us, we were not sure how many people would want to attend, but we found that all the tickets had been sold for the 225 places, well before the conference itself was held in March 2018, so some people found that they could not attend and were disappointed.
The SEN Law Conference is this year being held on Tuesday 5 March 2019, again in Central London. Although not all details are yet finalised, there will this year again be a great line up of speakers and SEND topics that will be covered.
Bearing in mind that we were booked up early last year and also listening to feedback we received, we have moved the conference to a larger venue this year at Prospero House, which has more space, better facilities and can accommodate more people. We are also launching the conference earlier this year, to give people more time to book.
May I therefore suggest that, if you want to come, you book a place as soon as possible, to avoid disappointment. It really is already a must-attend event for anyone concerned with SEN.
You cannot yet book a place, but I will send out another email in the next week with more details about how you can do so at www.senlawconference.co.uk. (We are again offering an early bird discount).
I am very excited about this conference again - as I said last year, I would attend it, even if I was not helping to organise it!
FORTHCOMING SEN EVENTS
This section is shorter than usual.
Unfortunately, I cannot currently find any notable SEN events taking place until the end of this year that I can recommend to you, although I would point out the following again:
However, I saw in the latest copy of SEN Magazine that there seem to be a number of online courses about things like Autism, Dyslexia, Attachment And Trauma, Speech, Language And Communication, the SEND Code of Practice, etc.
“I CAN’T GET UP!”
I returned a few days ago from doing another international bike ride on my specially-modified recumbent trike for the charity, Norwood, which helps children and young people with disabilities. I am glad to say that, together with friends, I managed to raise about another £21,500 for Norwood.
This time (my 9th), the ride was in Greece and we cycled just under 500 kilometres in 5 days to/from the beautiful city of Thessaloniki (Salonica) and also completely around the very hilly island of Thassos!
People ask me why I do so many rides for Norwood. One reason is that I like to do something that helps both me (in terms of keeping active and challenging my progressive disability) and that helps me also help other disabled people (in terms of raising money).
But one of the other reasons I do these rides, is that Norwood (who were the original charity that started fundraising through bike rides) also takes people with disabilities who it helps, on them, riding on the back of tandems ridden by other strong cyclists.
It is very special and eye-opening riding with disabled people who you know will benefit from your fundraising. When you do a ride like this, where you share challenges everyday with other like-minded people, you really feel that you are making a difference. They say that you are also joining the Norwood 'family'!
As you may know from reading this section in my previous updates, these bike rides always seem to have funny things happening to me, as a disabled person using a wheelchair. I am also conscious that, whilst I often will reveal things to people, there is a lot I don’t tell sometimes - as I often hear from fellow riders:
“What goes on tour, stays on tour…”
As you may recall from my update at this time last year, I arrived on that bike ride to find that our airline had left my wheelchair back in England, so I had to spend the first few days without it (although I had one lent to me in the interim by the airport). This time, whilst I managed to get my wheelchair to Greece, unfortunately, the cushion that I sit on was left behind by accident in England. I therefore spent the week sitting about an inch or so lower in my wheelchair.
An added difficulty was that my cushion is ‘Velcro-ed’ to the seat of my wheelchair, so I then also found that with my Lycra cycling ‘bottoms’ on, I would stick to the wheelchair when I was sitting on it, which made it hard for me to get up again from my wheelchair when I needed to transfer to my trike!
My finding myself ‘Velcro-ed’ to my wheelchair was very amusing to everyone during the week and, after initially feel aggrieved by this, I also found myself eventually seeing the funny side of it.
One of the people who I have ridden with during the past few years is a young man with Down’s Syndrome called Nick, who has a great sense of humour and positive attitude to life, but who also has a speech impediment.
So it was even funnier when I found myself one day towards the end of the ride, experiencing real difficulty getting up from my wheelchair when Nick looked at me and said:
“Goes tour, stays tour!”
With good wishes
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