On Friday 31 July 2020, updated Guidance on the temporary legislative changes relating to EHCPs and Coronavirus was published.

The good news for children, young people, and parents is that the Secretary of State announced on 2 July 2020 that, unless the evidence changes, the Secretary of State will not be issuing further notices after 31 July 2020 to extend the modification to the Section 42 Children & Families Act 2014 absolute duty.

The updated Guidance reiterates this commitment albeit that the caveat of “unless the evidence changes” does mean there is no guarantee that a national change of this severity will not be considered again.

What is Section 42 Children & Families Act 2014 and what is the practical effect or implication of the updated Guidance?

Section 42 Children & Families Act 2014 (CFA 2014) places an absolute duty on a Local Authority to secure Section F special educational provision (SEP)  to meet a child or young person’s Section B special educational needs (SEN).

As we reported previously, with the passing of the Coronavirus Act 2020, the Secretary of State issued a ‘Modification Notice’, which was subsequently renewed in May, June and July.

The ‘Modification Notice’ modified Local Authorities absolute duty to provide SEP in accordance with Section 42 CFA 2014, to a duty of ‘reasonable endeavours’. Further information about the previous modification can be found by clicking here.

The Guidance confirms no further national notices will be issued, which means a restoration of the pre-Coronavirus position and an end (at least for now) to the national downgrading or watering down of the absolute duty placed on Local Authorities to secure SEP.

In practical terms, this means a Local Authority must secure Section F provision (for example, speech and language therapy to meet Section B communication needs) unless the responsible Local Authority has been afforded flexibility locally to respond to outbreaks.

What does the local flexibility caveat mean?

It is not entirely clear what the updated Guidance means by the phrase “whether any such flexibilities may be required locally to respond to outbreaks”.   Further detail on this point has not yet been published, however, it seems likely that a similar model to the Care Act 2014 Easements process may be envisaged.  No doubt more information with regard to this caveat will follow.

When is this change effective?

As no further ‘Modification Notice’ was issued on 31 July 2020, the absolute duty to secure Section F SEP is effective from 1 August 2020.

Local Authorities and educational settings will, therefore, need to work together to ensure that resources are in place to deliver a child or young person’s Section F SEP in accordance with their EHCP. There is no excuse for the failure to provide the provision specified in an EHCP because the Section 42 CFA 2014 duty is no longer subject to ‘reasonable endeavours’ modification and so the duty is absolute.

Are there any other changes?

No. Whilst the Section 42 CFA 2014 absolute duty has been reinstated, the modifications to timings remain in place until 25 September 2020. It is expected that the Government will make an announcement regarding whether these changes will be extended beyond 25 September 2020 over the coming weeks.

When can key timescales be modified under the Coronavirus Act 2020 Regulations?

When the so-called ‘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 instead read 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.

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

Under the temporary changes, if the incidence or transmission of COVID-19 makes this impractical 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 note that the following has not changed as a result of the Coronavirus Act 2020 and Coronavirus Regulations:

• The substantive requirements relating to assessing needs and 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 continues to operate on the basis of full digital working.
• The requirement to conduct EHCP annual reviews has not changed.
• The duty on education settings to admit a child or young person remains.
• The timescales for education settings to respond to a proposal to name the setting in a plan remains.

Is it back to school in September?

Yes. The current position is that all pupils are expected to return to school in September. This includes a child or young person with SEN and a child or young person with an EHCP.

Sensible and proportionate measures should be taken to reduce the risks to a child or young person. Educational settings are required to minimise contact between children, young people and staff. Social distancing should be maintained albeit relevant guidance does indicate that it is accepted social distancing may not always be possible.

If your child or young person has SEN, but does not have an EHCP, the educational setting must ensure ‘reasonable adjustments’ are made to facilitate a full-time return to school in order to comply with Equality Act 2010 obligations. A failure to make ‘reasonable adjustments’ may constitute discrimination.

For any child or young person with an EHCP, the educational setting must ensure arrangements are made for the child or young person to return to school full-time with the resources in place to ensure they are provided with all of the Section F SEP required to meet their Section B SEN.

There is no excuse and any failure to do so can be challenged informally. If informal resolution is not possible it may be necessary to escalate matters through a complaint to the Local Authority, the Ombudsman, or the Department for Education. In certain circumstances it may be appropriate to consider Judicial Review. It is suggested that given complaints processes can often take some time, raising issues with the Department for Education may be a more effective remedy given that formal legal action should be a last resort.

When is it possible for a child or young person not to return to school?

It may be possible to agree that a child or young person will not return to school in a case where a medical professional agrees it will not be safe for a child or young person to return. It is suggested there would need to be an objectively good reason for this on the basis of clinical evidence because educational settings will need to ensure adjustments are made to facilitate all pupils return to school, regardless of the complexity of their needs.

What guidance should I consider when planning my child or young person’s return to school?

Relevant guidance to the issue of returning to school is listed below. Inevitably, due to the nature of the Coronavirus pandemic, these documents are regularly updated so it is best to keep them under review.

• DfE Guidance “Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)”- updated 31 July 2020
• DfE Guidance for full opening: schools – updated 27 July 2020
• DfE Guidance for full opening: special schools and other specialist settings – published 2 July 2020
• Joint Ministerial Letter to children and young people with SEND and their parents dated 21 July 2020
• DfE Guidance for parents on elective home education – April 2019
• DfE Guidance “Safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE)” – updated 21 June 2020
• Public Health England “Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 – Updated 31 July 2020
• Royal College of Paediatrics and Child Health advice “COVID-19 -‘shielding’ guidance for children and young people” – updated 31 July 2020

Questions?

If you would like to discuss issues or concerns relating to SEN provision, EHCPs, and returning to school, please contact our community care and SEN solicitors today by telephone on 02380 827483 or by email at online.enquiries@la-law.com.