by Douglas Silas, specialist SEN solicitor
There is such a lot of information out there at the moment that it is hard to absorb it all, or know what is the most relevant or important.
Following the welcome reception to my update on SEN and Covid-19 last week, I have now decided to write an update weekly, which will be sent out to those who already subscribe to my normal ‘SEN Update’ emails, or who follow me on one of the social media platforms that I use (i.e. Twitter/Facebook/LinkedIn). I have also set up a new list for anyone else who wishes to receive these updates now by email.
(You do not need to do this if you are already receiving this update, but I would be grateful if you could forward, post or retweet this update to others who may need it and ask them to subscribe themselves on my new website [see below] to receive the update by email, or to follow me on Twitter/Facebook/LinkedIn).
I have also now set up a dedicated website at ‘www.SEN-Covid-19.co.uk’, where you can find out all the latest information in one place, to save people from having to spend their time trying to find out the important information themselves.
You will see that, apart from it having new and previous updates on it, I have also designed the home page to have an (automatically) constantly updated Twitter news feed compiled from the most important feeds providing relevant and important information in relation to the impact that Coronavirus/Covid-19 is having on SEN provision for children and young people.
I am also going to now follow the same style in every update with just three FAQs, which will hopefully make things quicker and easier for people to digest.
1)What is the current situation this week?
There has been a plethora of information this week posted/tweeted on the internet, including information/updates on school closures, the Government’s response to educational provision in various settings, what happens now to school/LA/other public services and about lots of other things.
Some of the most important information that has been issued by the Government is contained in two letters written by Vicky Ford MP, the Parliamentary Under-Secretary of State for Children and Families, on 24 March 2020. One is a more general letter and another is directed to ‘Early Years and Childcare Providers In England’.
The first of these letters stated as follows:
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 (https://services.parliament.uk/bills/2019-21/coronavirus.html).
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, and 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 www.gov.co.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.
Vicky Ford MP
Parliamentary Under-Secretary of State for Children and Families’
The second of these letters stated as follows:
LETTER TO EARLY YEARS AND CHILDCARE PROVIDERS IN ENGLAND
The early years and childcare sector is vital to the country’s response to the COVID- 19 outbreak. On behalf of the Prime Minister and the entire Government, I want to thank you for all you are doing to care for for the youngest children in our country, as part of the fight against COVID-19.
I recognise that you will have the same concerns as the rest of the country about your health and that of your families. I am deeply grateful for the civic spirit and dedication of everyone working in early years and childcare, and I will continue to provide my full support throughout this challenging time. As the Prime Minister made clear on Wednesday 18th March, the coming weeks will require a community effort to deal with a challenge greater than most of us have ever faced in peacetime. The childcare sector is full of resourceful, ingenious and resilient people and I am confident that together we will overcome this challenge.
As a country, our priority must be to reduce the spread of the COVID-19 virus. Last week it became clear that the spike of the virus was increasing at a faster pace than anticipated and it was crucial to implement the right measures to arrest this increase and to relieve the pressure on the health system. To do this, and provide parents, children and staff with the certainty they need, we announced that schools, colleges and childcare settings (including nurseries, pre-schools, childminders and wrap around childcare for school aged children) would close to everyone except children of critical workers and vulnerable children from Friday 20 March, as part of the country’s ongoing response to COVID-19.
This decision was made to limit the spread of the virus. That is why the Government has asked parents to keep their children at home, wherever possible. Keeping as many children at home as possible is essential to protect the NHS and save lives and I ask for your support in ensuring this advice is understood and followed by families in your communities.
We have asked you to continue to provide care for a limited number of children - children who are vulnerable, and children whose parents are critical to the COVID-
19 response and cannot be safely cared for at home. Childcare settings should not provide care for children who do not meet these criteria. Guidance for childcare providers to follow on this can be found here.
I recognise that we have asked a lot of the sector at very short notice, and that you will be thinking carefully about how you might provide high quality and safe care for a smaller number of children than usual. I understand that some of you may be unable to do so, especially if you are experiencing severe staff shortages due to ill- health or self-isolation. Your local authority will be assessing the needs of your community and talking to you about how to best organise childcare for vulnerable children and children of key workers. The Emergency Bill we published on Thursday 19 March seeks temporary powers to make changes to childcare regulations in order to help local authorities respond to pressures from this outbreak, without being in breach of regulatory requirements, as well as addressing the legal issues around closures of school and other education settings.
The health, safety and well-being of children must be our first consideration. I continue to expect childcare to take place only within existing registered early years and childcare settings. In line with its duties as a regulator, Ofsted will consider legal enforcement action against those who set up unregistered childcare.
I know that many of you will be concerned about the future of your childcare businesses and the jobs that depend on them in these uncertain times, and I have set out below some of the measures Government has already announced to support businesses during this period. We are working hard to mitigate the impacts of COVID-19 on all parts of our society, including individuals and business and I strongly urge all providers to be sensitive to the financial burden that you are passing on to parents, given the great uncertainty that they will be facing too.
Last week the Secretary of State for Education announced that entitlements funding will not be clawed back from local authorities, even where settings close or children were not able to attend due to COVID-19. I know that local authorities will want to honour this position and pass funding onto providers as if things were ‘usual’ – I have made clear that this is my firm expectation.
In addition, the Chancellor has announced a package of support for workers and businesses, this includes:
- Childcare providers will be eligible for a business rates holiday for one year. That means non-local authority providers of childcare (registered with Ofsted and providing EYFS) will pay no business rates in 2020-21, from 1 April. Local authorities are working to implement this and guidance has been published.
-Nurseries in receipt of small business rate relief or rural rate relief will benefit from small business grant funding of £10,000. This includes nurseries who are eligible for a charitable status relief – they will also pay no business rates at all in 2020-21.
- Some settings operate from shared spaces which may now benefit from a 100% rates relief. I strongly encourage those settings in shared spaces to request that any business rate savings be reflected in their rent charge.
- The Coronavirus Job Retention Scheme means that for employees who are not working but kept on payroll, the Government will contribute 80% of each worker’s wages of up to £2,500, backdated to 1 March 2020. Providers can access this scheme while continuing to be paid the early entitlements funding via local authorities. For many pre-schools and nurseries we know that staffing is their largest expense, so this will make a significant contribution to help manage their outgoings.
- The Business Interruption Loan Scheme will now be interest-free for 12 months (rather than six).
- VAT payments due with VAT returns between now and end June 2020 will be deferred, meaning UK VAT registered businesses will not need make those payments until the end of the financial year.
- Working tax credit has been increased by £1,000 a year.
- £20 per week increase to the Universal Credit standard allowance and Working Tax Credit basic element has been increased by £20 a week.
- Local Housing Allowance rates for Universal Credit and Housing Benefit have been increased so that it covers the cheapest third of local rents
- The minimum income floor for Universal Credit will be temporarily relaxed.
- The Government is also supporting the self-employed by deferring income tax self-assessment payments due in July 2020 to January 2021. This is also an automatic offer with no applications required.
More details are can be found here.
The Department for Education has set up regular contact meetings with representatives from across the early years sector, including Early Years Alliance, the National Day Nurseries Association, the Professional Association for Childcare and Early Years, as well as with local authorities. This is to ensure we continue our close work with the sector to rapidly identify the most effective ways to mitigate the negative impact of these closures. The Government is committed to supporting settings through this pandemic. The vital service that you provide will be key to supporting families and the wider economy to get back to work once we have beaten the pandemic.
Vicky Ford MP
Parliamentary Under Secretary of State’
But probably the most important thing was that the Coronavirus Act 2020 was enacted on 25thMarch 2020 and the previous explicit and non-delegable (i.e. absolute) duty on LA’s to provide special educational provision contained within Education, Health and Care (EHC) Plans has now been watered down (as anticipated) to there only now been a ‘reasonable and endeavours’duty to deliver provision.
However, it is also important to note that, in order for this to come into force, the Secretary of State for Education has to issue a notice to allow for this and the notice must also explain why issuing the notice is considered to be necessary and proportionate. Also, parents who consent to changes or reductions to their child’s provision during the Coronavirus outbreak, will not be considered to have agreed to a permanent change to their child’s needs as set out in their EHC Plan and any changes to the support outlined in the EHC Plan during this period will also be taken as temporary changes only.
It is also important for me to point out that there will be some children and young people who may be at significant risk if their educational, health and care needs cannot be met (including those with profound and multiple learning difficulties, or those already receiving significant levels of personal care support at an educational setting) and, as far as I know, LA’s still need to ensure that there are educational settings still open for these children and there should be a risk assessment done for each child or young person.
In other news, I have seen a number of organisations and Government departments offering practical advice or resources to people and some LAs have also informed parents that home to school transport is no longer available to them.
2)What does this all mean?
It is extremely clear that, although we are only a week into school closures and only a short while into the Coronavirus pandemic, that we are already in a real crisis situation across the world, so it is important for us all to realise that everybody is doing the best that they can and it is going to be very critical for us to be as flexible as possible. However, I have heard many commentators say that already it feels like children and young people with SEN or disabled people generally are quickly being forgotten and sacrificed.
As I said last week, children with EHC Plans are considered to be ‘vulnerable’ and should continue to receive educational provision, but I have spoken to many parents already who have sought my advice and who have explained to me that their child’s school has closed, that their child does not yet have an EHC Plan, or that their school has only been kept open to allow for educational provision to really continue to care for children of ‘key workers’ (although it should also be for children with EHC Plans). Some have told me that they have refused or are reluctant to send their child into school because that will inevitably mean they will be out of their normal routine (which may affect them negatively) or not get the specialist teaching or support even that they require.
Some have even been very blunt with me and have said that they do not wish for their child to come into contact with other children whose parents are key workers who may be at higher risk of contracting the virus and thereby then expose them to a significant danger, or allow them to then potentially bring the virus into their own home.
One of the most frequent questions I have had is about things like lack of continuing provision of specialist teaching or therapy provision; or it no longer being provided due to practical difficulties or lack of resources/staff. There are also situations where parents now find themselves paying for independent schools to continue securing their child’s place there when they re-open (as they have closed already), so their child is no longer receiving any educational provision, or cannot access any online tutoring that is being made for the majority of other children at the school.
Some are even a bit incensed that the school may be continuing to be paid by the LA for additional provision which their child is no longer receiving.
Of course, some of the above are general problems which affect many people, but some situations are individual to particular cases and it is extremely hard for me to comment or advise on many situations until I have the full facts.
However, I would say in general that one of the most important things to do at the moment is to speak with and maintain communication with the relevant school/LA and see what can be done, including the diverting of funds/resources, or the provision of specialist teaching/therapy remotely through video conference facilities (such as Skype, Zoom, etc).
3)Where can I find further information?
As I said at the beginning of this update, there is now a plethora of information out there and the best information I have come across are on the websites of the following people/organisations:
- Council for Disabled Children;
Finally, I want to close this update by saying that you/your children may also find it helpful to watch this excellent coronavirus video to help children understand the virus and to offer them comfort and reassurance in these worrying times, which you will find here.
With best wishes,
P.S. I also want to highlight the fact that there are currently a lot of scams out there, both online and through texts/WhatsApps, which you need to be aware of. Please be extremely careful and help yourself and others to not become victims. You can learn more about the different types of scams at: www.FriendsAgainstScams.org.uk.
FACTS AND FAQs ABOUT SEN & COVID-19
As many people, both professionally and personally will already be aware, many schools are now closed because of the COVID-19/coronavirus pandemic.
I thought that it would therefore be helpful to compile here as much (clear) information as I can from what we have gleaned on the internet, about what happens to SEN provision now, which I have done in the style of FAQs (Frequently Asked Questions).
(1) What is the current situation?
The Secretary of State for Education announced that most schools were to close on Friday 20 March 2020, but that education was going to still be provided for some categories of children/young people (considered to be ‘vulnerable’), as follows:
- Those with social workers; and
- All children with Education Health and Care (EHC) Plans.
The Government guidance also said that it wanted to keep parents in work who are doing vital jobs to support crucial sectors that ensure the country continues to function amid the coronavirus pandemic. Therefore, a skeleton network of schools and nurseries is set to remain open. Special schools are expected to remain open during the closures. The Government is also advising parents to speak to their LA if their child’s school is closed and it will then be their duty to redirect them to a local school that their child can attend, if necessary.
The Government guidance further says that, if it is at all possible for children to be at home, then they should be, but if a child/young person needs specialist support, is vulnerable or has a parent who is a critical worker, then educational provision will be available for them. It is not yet known whether all schools will remain open. The government though is encouraging Local Authorities (LAs) to keep residential special schools and specialist colleges open if possible. Teachers and other staff will continue to work, but many will now do so remotely/online.
Finally, the guidance has said:‘We should like to reassure parents that they are the best judge of what is right for their child and will not be penalised for keeping a child at home.’
(2) What does this mean?
Theoretically, this means that schools are being asked to continue to provide care for a number of pupils whose parents are ‘key workers’,* but they will be closed to the majority from Monday 23 March 2020.
Also, provision will still need to continue for children/young people with EHC Plans. Special schools should remain open during the closures, whilst educational settings generally will continue to cater for vulnerable children and pupils whose parents are key workers. LAs still have an obligation to carry out EHC assessments, but staff may be unable to meet deadlines.
Yet, what this means in practice has not been clarified at the time of my writing this, so it is very hard for me to say at this stage exactly what the practical implications will be. There is also not enough info or guidance yet on how therapy/provision will/can be provided outside of school. It seems though that the majority of children/young people who receive SEN support, but do not have an EHC Plan will be expected to stay at home, unless they have a social worker or parent/carer who is a key worker.
All I would say is that the strict legal duty for the LA now to ‘deliver’ provision in an EHC Plan and all children/young people may be watered down and children/young people are expected to continue to attend school if they have one parent who is classified by the government as a key worker.
Finally (in summary) Government guidance also says the following:
- If it is at all possible for children to be at home, then they should be;
- If a child needs specialist support, is vulnerable or has a parent who is a critical worker, then educational provision will be available for them;
- Parents should not rely for childcare upon those who are advised to be in the stringent social distancing category, such as grandparents, friends, or family members with underlying conditions;
- Parents should also do everything they can to ensure children are not mixing socially in a way which can continue to spread the virus and they should observe the same social distancing principles as adults;
- Residential special schools, boarding schools and special settings should continue to care for children wherever possible.
(3) Can you refer me to any other resources about what is happening?
There are a number of useful resources now on the internet, which can provide helpful information, which you will find on the websites of the following:
- Council for Disabled Children
- IPSEA (including a SEND Tribunal Update)
*Who are ‘key workers’?
The Department for Education has published a list of “key workers” whose children will be prioritised for schooling during general closures. The best summary I have seen was on the ‘Evening Standard’s website and said as follows:
‘The Department for Education said: "If your work is critical to the COVID-19 response, or you work in one of the critical sectors listed below, and you cannot keep your child safe at home, then your children will be prioritised for education provision."
(a) Health and social care - This includes frontline health and social care staff - such as doctors, nurses, midwives, paramedics, as well as support and specialist staff in the health and social care sector. In addition, those working in supply chains, including producers and distributors of medicines and personal protective equipment are included.
(b) Education and childcare - This includes nursery, teaching staff and social workers, as the department said these workers are required to deliver their plans.
(c) Key public services - Those required to run the justice system, religious staff, as well as those responsible for managing the deceased and journalists providing public service broadcasting are on the list.
(d) Local and national government - The list "only includes administrative occupations essential to the effective delivery of the Covid-19 response or delivering essential public services", including payment of benefits.
(e) Food and other necessary goods - The list includes those involved in the production, processing, distribution, sale and delivery of food.
(f) Public safety and national security - Police, support staff, Ministry of Defence civilian staff and armed forces personnel are on the list, along with fire and rescue staff, as well as those responsible for border security, prison and probation staff.
(g) Transport - The list includes those who will keep "air, water, road and rail passenger and freight transport modes operating during the COVID-19 response".
(h) Utilities, communication and financial services - Staff required to keep oil, gas, electricity, water and sewerage operations running are on the list, along with those in the civil nuclear, chemical and telecommunications sectors. Those in postal services and working to provide essential financial services provision are also included.