How does the Coronavirus Act 2020 impact special educational needs provision and EHCPs?

In response to the Coronavirus pandemic, Parliament passed the Coronavirus Act 2020. Changes to special educational needs provision became effective following the issue of the ‘Modification Notice’ by the Secretary of State.  The key change to be aware of is that essentially, the ‘Notice’ (which has been recently renewed) modifies the absolute duty to secure special educational needs (SEN) provision contained within Section 42 Children & Families Act 2014 to a duty of ‘reasonable endeavours’.

What is the practical effect or implication of this change?

This modification is effectively a downgrading or watering down of a Local Authority’s absolute duty to provide SEN provision as specified in a child or young person’s EHCP.

It is important, however, to be aware that this does not mean a Local Authority can simply choose not to provide provision to meet a child or young person’s SEN. A Local Authority cannot wash its hands of a child or young person with an EHCP.

When are these changes effective?

From 1 May 2020 until 25 September 2020. The effectiveness of the Regulations has to be reviewed during this period.

Are there any other changes?

Yes. In addition to the downgrading of the Section 42 absolute duty, to one of reasonable endeavours, there are modifications to timings. As explained in our information sheet, the entire EHC process should take no longer than 20 weeks unless there are ‘exceptional circumstances’.

The Coronavirus Act 2020 changes however introduce a significant relaxation to the deadlines for various aspects of the EHCP process during the period in which these changes are in force. A Local Authority can therefore lawfully delay when ordinarily delay would not be acceptable.

Is there Guidance available?

Yes. The Guidance (available by clicking here) is subject to review.

According to the Guidance, Local Authorities should consider:

• The specific local circumstances.
• The needs and specific circumstances affecting the child or young person.
• The views of the child, young person and their parents regarding what provision might be appropriate.

Decisions should be made using the framework for discharging the ‘reasonable endeavours’ duty.

The ‘reasonable endeavours’ framework provides that Local Authorities should consider:

• What? Differences in the provision stated in the plan.
• Where? Location where provision is to be provided may be altered.
• How? Frequency and timing of provision may be altered or modified.
• When? Method of delivery may be altered, such as to employ video technology.
• By whom? Changes to the person delivering the provision.

When can key timescales be modified?

When the ‘Coronavirus exception’ applies. According to the ‘Coronavirus exception’, where it is not ‘reasonably practicable’ for a Local Authority to meet a requirement for a reason relating to the incidence or transmission of coronavirus, any action to be taken within a specified period of time or by a certain day is to be read instead as a requirement for such action to be taken as soon as ‘reasonably practicable’.

This impacts the timescales relating to:

• The determination of requests for EHC needs assessments, decisions whether to issue EHCPs and the preparation or issue of plans.
• Annual reviews of EHCPs.
• Processes relating to mediation.
• Actions that a Local Authority and CCG must take when the Tribunal makes non-binding recommendations under the National Trial.

Example of modification to timescales

Previously, where a Local Authority decided it is necessary to issue an EHCP following an EHC needs assessment, a Local Authority should have issued a plan as soon as practicable but in any event within 20 weeks of the initial request.

Now, if the incidence or transmission of COVID-19 makes this impractical (i.e. to meet the 20 week deadline), a Local Authority must discharge its duty ‘as soon as reasonably practicable’. This inevitably affords a Local Authority discretion.

What has not changed?

It is important to be aware that the following has not changed:

• The substantive requirements relating to assessing needs & issuing EHCPs.
• You (a parent or young person) must still be given at least 15 calendar days to give your views and make representations on the content of a draft EHCP.
• Rights of appeal to the SEND Tribunal remain unaffected albeit the Tribunal has temporarily moved to fully digital working.
• The requirement to conduct EHCP annual reviews has not changed although this may change in the future.
• The duty on education settings to admit a child or young person remains.
• The timescale for education settings to respond to a proposal to name the setting in a plan remains.

Alternative arrangements

Evidently, creative thinking is needed. For example, if speech and language therapy is required to meet communication needs, it may be that rather than this being provided for at school, it is delivered by skype, zoom, or through collaboration with parents.

The guidance provides a non-exhaustive list of possible alternative arrangements.

Examples listed in the guidance include:

• Alterations to the frequency and timing of the delivery of provision in school, for example, moving to a part-time timetable.
• A temporary placement in another school – mainstream or special.
• Video class sessions for children.
• A speech and language therapist delivering sessions via video link.

What to know more?

Why not listen to our recent webinar presented in collaboration with Dorset Children’s Foundation, which is available by clicking here

Please note, since this webinar was recorded the Secretary of State has extended the changes to 30 June 2020 at which point a further review will be undertaken.

Questions?

If you would like to discuss issues relating to special educational needs provision and EHCPs, please contact our community care special educational needs solicitor today by telephone on 02380 827483 or by email at online.enquiries@LA-law.com.