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COVID-19 – SEND April 2020 Update - Jarmans Solicitors

COVID-19 – SEND April 2020 Update

June 21, 2022 jarmans 0 Comments

Here are some of the areas that are currently be raised by parents of children with special educational needs and disabilities (SEND). There are many and the situation is constantly changing  and subject to review.

To begin with parents need to refer to the specific guidance issued by the Government titled ‘Coronavirus (COVID 19): guidance on vulnerable children and young people’ and keep a look out for updates.

Schools and educational institutions

  1. Whilst those children with EHCP’s can still attend school in many cases they are having to attend different schools, are subject to reduced timetables and altered curriculums. The guidance records:

    “Local authorities will need to work closely with educational settings – and in particular, special schools and specialist colleges, and other specialist provision – to ensure sufficient provision is available across the local area. Local authorities and educational settings may need to redeploy staff (whether teachers, support staff or other critical workers) to ensure that specialist settings have sufficient workforce to operate safely; and may need to do this across the usual boundaries of maintained, academy, college or other status to ensure the right staff are in the right settings”.
  2. Children with EHCP’s should still be educated at home wherever possible in line with guidance which states:

    “Many children and young people with EHC plans can safely remain at home. If a risk assessment shows that the needs of an individual with an EHC plan cannot be met at home, it is likely they will continue at their usual school or college, but there may be a need to attend a different setting…..”.

    Parents of children with EHCP’s who keep their children at home will therefore not face punishment.
  3. Primary school assessments and secondary school exams have been cancelled this summer. Grades will instead be awarded following an overall assessment based upon on mock exam results and other relevant information.
  4. An educational institution named in an EHCP does not have to admit a student if it would put the pupil at risk of catching the coronavirus.
  5. Ofsted inspections are currently on hold.
  6. Under the provisions of the Coronavirus Act 2020 the duty on schools to admit a child where the EHCP names that school (section 43 of the Children and Families Act 2014) can be temporarily removed.
  7. How long schools will remain closed is not known although it would appear this will remain the position for a matter of months and not weeks.

    Education Health Care Plans
  8. The Coronavirus Act 2020 allows the Secretary of State to adjust, or suspend some of the laws (in particular section 42 of the Children and Families Act 2014) relating to education and meeting special educational needs. The duty can therefore be effectively been downgraded from an ‘absolute duty’ to a ‘reasonable endeavours’ duty by the Secretary of State issuing a temporary notice.

    But what does ‘reasonable endeavours’ mean in the context of SEND? There is no definition or specific guidance and it is has not even been framed as ‘best endeavours’ or ‘all reasonable endeavours’ which on the face it would be more onerous for Local Authorities. Many parents understandably fear it will just result in many EHCP’s being ‘watered down’ to nothing for the foreseeable future.

    Parents of children with SEND know only too well they do not have the option to ‘downgrade’ their responsibilities, no matter how much extra pressure they are under at the present time. Instead, parents are expected to increase significantly what they do whilst there are no outlets for them and no support is available. Many parents will no doubt feel abandoned at a time when provision should be increased and not decreased.
  9. With regard to time limits the guidance says:

    “We are also proposing to amend regulations to provide for flexibility over matters such as the timescales in EHC needs assessments, and the reviews, re-assessments and amendments process where particular cases are affected by the COVID-19 situation”.

    Whilst the timescales and deadlines have not to date been changed, given the current circumstances it would only seem sensible to allow a little flexibility before sending pre-action protocol letters, issuing appeals etc.  Hopefully, Local Authorities will at least communicate with parents to a certain degree but that may just be wishful thinking.
  10. The Government’s guidance covering vulnerable children who do not presently have EHCP’s and those presently going through a needs assessment states:

    “…..their educational setting and local authority have discretion to undertake a risk assessment and offer support if that is needed”.
  11. A parent can still request an EHCP needs assessment from their Local Authority but at a practical level it is difficult to see how a Local Authority will be able to meet the statutory deadlines. Obtaining evidence is going to be problematic and no doubt Local Authorities will be suffering from staff shortages during the present crisis.

    The guidance states:
    “We are also proposing to amend regulations to provide for flexibility over matters such as the timescales in EHC needs assessments, and the reviews, re-assessments and amendments processes where particular cases are affected by the COVID-19 situation”.
  12. With regard to annual reviews the Secretary of State can delay this requirement if it would put anyone at risk of catching the coronavirus.
  13. Any changes made to a child or young person’s provision in their EHC Plan as result of the coronavirus would only remain in place temporarily. Parents who consent to changes to, or reductions in, provision during the outbreak, will not be considered to have agreed to a permanent amendment of the EHC Plan. The full range of provision should be reinstated once the temporary restrictions expire.
  14. The Local Government & Social Care Ombudsman has confirmed that it is not taking on any new complaints at the present time.

    SEND Tribunals
  15. Challenges can still be made to the SEND Tribunal but again there will be delays. Hearings are now being conducted over the telephone or by video link. Understandably, there may be a delay in decisions of the Tribunal being issued. Guidance issued by the SEND Tribunal states:

    “Decisions about the education of children and young people are vitally important and the Tribunal is making every effort to conclude as many appeals and claims as possible. The Tribunal are already aware of parents, young people, local authority representatives and witnesses who are self-isolating and social distancing, putting pressure on all services at this unprecedented time.

    Following today’s announcement from the Senior President of Tribunals , all hearings in the First- 1 tier Tribunal Special Educational Needs and Disability will move away from face to face hearings and make use of the technology available. From Monday 23 March 2020, the Tribunal will use technology to enable hearings to proceed for the duration of the COVID-19 pandemic. “Hearings will be on paper or by telephone and where possible video, where the technology permits. The arrangements for your hearing will be confirmed at least 2 days before the date on which your hearing is listed, and it would assist if you could check whether you are able to access telephone and internet services either in your home or locally.

    You will not be required to travel to the hearing venue if you have either telephone or internet video facilities. If parties do not have a reliable telephone or internet service available in their homes it may be possible to arrange to use the IT equipment or telephones at your nearest Courts and Tribunals hearing venue. There is no need to contact the Tribunal to obtain the details as the administrative team are working to issue those details to you in time for your hearing.”
  16. Understandably, there may be a delay in decisions of the Tribunal being issued due to staff shortages. Further, once issued it may be some time before certain parts of the decision/any revised plan can be implemented and a Local Authority may only have to use ‘reasonable endeavours’ depending upon further intervention by the Secretary of State.
  17. The SEND Tribunal has in recent months simply struggled at the best of times with many hearings having to be adjourned to later dates no matter how this impacts on the child and the family. Remote hearings may ultimately become the new norm in an attempt to address the backlog and the increased number of appeals being made following the failures of Local Authorities to meet their statutory obligations.

In summary, there is very little to provide any comfort to parents of children with SEND. Long before the impact of the coronavirus the system concerning special educational needs and disabilites was completely broken, as highlighted by the Commons Select Committee which published its report in October 2019, and by Ofsted and the CQC following numerous investigations which were widely published. But nothing was done and the system remains broken.

The proposed changes now brought about by emergency legislation will provide Local Authorities and others with an opportunity to delay even longer the provision of desperately needed education and health care provision for the most vulnerable in our society. Parents will have even longer to wait in the hope that one day changes for the better will be made but this may not be for many years.

If you are a young person with SEND or care for a child/young person with SEND and want to challenge a local authority decision get in touch.

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