by Douglas Silas, specialist SEN solicitor
This is my weekly update for SEN and Covid–19.
This week, rather than me just writing a wall of text for you to read (although there is that too), I am going to try to sometimes use videos that I have found on the web, which you may find useful.
I hope that this helps people.
1. What has happened this week?
Although a lot of people were initially quite active on the web last week during the first week of school closures and our primary 'lockdown', this week there has not been so much activity, as I fear that the novelty of doing things differently for many people may have already started to wear off.
Here's a video which summarise things well...
and here's a reminder about what is happening with schools...
Also, many people with children who are at home now may be finding it very difficult to both educate and amuse them, as well as get on with their regular 'day job'.
If this is you, you may find it helpful to watch the following video...
I have seen guidance this week from the National Education Union (NEU - a teaching union), which states (I have underlined some things):
'Guidance for primary teachers
- Taking care of your physical and mental health is crucial at this time: this goes for children, parents and teachers. Keeping minds active and happy, ready to return to school when the time comes is the most important factor.
- Teachers working at home can only carry out a reasonable workload and this must be negotiated with staff. Teachers should not be asked to personally contact their students daily, except where they have agreed with the headteacher a system/ rota for contacting vulnerable children and families. Teachers must not use personal phones, emails or social media to carry out this contact.
- Teachers should not live-stream lessons from their homes, nor engage in any video-calling unless in exceptional circumstances, with the parent. Online lessons are not desirable for primary children as the teacher-pupil interaction is not easily replicated.
- Many children need a lot of guidance when working and cannot be left for long periods of time to complete complex tasks. Schools should suggest activities that children can complete on their own. We must recognise that many parents are also trying to work from home, and parents might struggle to assist with schoolwork for a number of reasons. Parents cannot be expected to become teachers.
- Tasks that do not need the internet or a device such as a laptop or tablet to access them are preferable, as some children and families will not have internet access or more than one device to use.
- Work and tasks should suit the age range and capabilities of the children and expected outcomes should be flexible. Try to set tasks that all pupils can complete to some degree of success, with extra and more stretching activities for the more able.
- Work that can be done in bite-sized chunks is more likely to be completed than longer tasks. If there are projects, suggest how these could be broken down.
- Worksheets/textbook pages for maths and English can work if they are already used in school and all children have them at home. Teachers cannot be expected to mark work. Schools should not be setting SATs tests or mocks at this time.
- A list of flexible tasks that cover different areas of the curriculum allows children to choose the tasks that interest them, and the ones parents feel they can manage.
- It is most beneficial and realistic to offer a variety of tasks which are done working at a table (keep these to a minimum) or while moving around, including creative tasks.
'Guidance for secondary teachers
[the first two paragraphs above are the same]
- Teachers should not live-stream lessons from their homes, nor engage in any video-calling, unless in exceptional circumstances with the parent.
- Not all pupils will have a quiet place to work, and some will be expected to take care of younger siblings or perform household chores.
- Schools should suggest activities that children can complete on their own regardless of ability level. We must recognise that most parents are also trying to work from home. Parents cannot be expected to become teachers.
- Variety is key and bite-sized chunks of work are more likely to be completed and could be part of a bigger project. We cannot expect pupils or parents to replicate the classroom at home.
- Set tasks that can be completed to varying degrees of success with more complex and additional tasks for the most able pupils. Tasks that require little or no access to technology are preferable in order to cater for everyone. Where schools do use technology, they should use the technology that pupils and teachers are familiar with.
- A list of flexible tasks that cover different areas of the curriculum allows pupils to choose the tasks that interest them and makes it more likely that they will complete them. Post-16 learners might be able to carry out more open-ended, independent work, but structure and guidance is still needed for them.
- If schools have systems set up for online lessons, these should be kept to a minimum as the interaction needed between teacher and pupils in school is high and cannot be easily replicated for a young audience, even at KS4 level. Any school which carries out online lessons must have protocols in place to protect staff and safeguard pupils, and no teacher should be expected to carry out any online teaching with which they feel uncomfortable or in the absence of agreed protocols.
- At this time, teachers should not be expected to carry out routine marking or grading of pupils’ work. To do so would be to disadvantage those who do not have the resources and support available at home to make that fair.
There is also other guidance, which says that children may only need 2–3 hours a day of "work" and that helping with gardening, cooking and washing can all be "educational".
But the main thing that people reading my updates may want to know in this section is what is actually happening in relation to the law concerning children and young people with SEN with the impact of Covid-19/the Coronavirus.
I attended a webinar earlier in the week staged by 11KBW, where barristers, Jonathan Auburn and Joanne Clement covered the following issues:
- the temporary closure of educational institutions
- the temporary continuity directions
⁃ the powers of the Secretary of State for Education to now disapply or modify legislative provisions
⁃ the fact the 'absolute' obligation on a Local Authority (LA) to provide SEN provision in an Education, Health and Care (EHC) plan can be converted into a 'reasonable endeavours' duty
⁃ the fact that the Secretary of State for Education must first issue a 'notice' to bring this into effect and will only do so where appropriate and proportionate action is needed in the circumstances
⁃ the fact that there is no threshold for a 'notice' in the Act, but that the letter from Vicky Ford MP of 24/3/20 says that powers will only be exercised ... where necessary
⁃ the fact that a 'notice' must not exceed one month (although it could be re-issued)
- the need sometimes for appropriate risk assessments to be carried out
They also pointed out that there has been no modifications or disapplications of current legal duties (AT PRESENT), in relation to:
⁃ EHC Assessments
⁃ finalising EHC plans
⁃ Annual Reviews
Finally, they also referred to other helpful DfE (Department of Education) guidance, including: 'Coronavirus (COVID-19): guidance on vulnerable children and young people', which they said was the most useful guidance currently on SEN provision and answered numerous questions.
2. What does this all mean?
As I said in my first update, although the Government has allowed 'vulnerable' children and those of key workers to still go to school during the current pandemic, my experience has been that so far very few parents have taken this on board and many children with SEN are now being kept at home for the duration of this crisis.
Also, although many schools have closed. some should remain open for caring for/educating these children and the Government initially asked special schools not to close, but some have done. There is a great difficulty for many children and young people, especially those with special educational needs, between distinguishing between doing schoolwork at school and being more relaxed at home.
Whilst, as I say above, the novelty of not having to go to school and parents not having to go to work, may have initially felt very good, it is extremely difficult for many parents at the moment to keep their children continuously educated and entertained.
In addition, there are always going to be good days and bad days and the advice I have seen many times (although I am not a teacher or psychologist) is that trying to force a child to learn when they really do not want to, may actually be counter-productive in the long run, particularly when remembering that parents are going to be living 24/7 with them every day.
It is very important to bear in mind that there is no legal duty on parents to try to maintain the provision in their child's EHC plan whilst they are out of school and trying to do so will be an impossible task, so parents should not feel they need to try to. It seems to me that the best that can be achieved in these difficult times is to come up with some kind of alternative or different schedule for home-schooling that everyone can 'buy into'.
I realise though that this is not going to be satisfactory for many people.
In terms of the law itself, I believe that we are still, effectively, in the early days for me to give any definitive advice yet as to what is happening. As a 'notice' under the Coronavirus Act 2020 has not yet been brought into effect, this should mean that LAs are under the same legal duties as before in respect of assessments/timescales/maintaining provision for EHC plans, although I do believe that we should all be as flexible as we can in the current circumstances.
3. Where can I find further information?
I've seen a number of videos on the web, which I think many people may find helpful, such as...
There are also a number of online resources for children and young people, including for younger children.
These even include covering simple things like taking exercise or learning how to wash your hands properly, such as...
Finally, I would again remind you of the very useful resources and information provided on the following websites:
- Council for Disabled Children
- Special Needs Jungle
Remember also, that there are also 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.