Published 07/05/2020

IPSEA is very concerned about the impact of the temporary changes introduced by government which significantly dilute the responsibilities of local authorities (“LAs”) towards children and young people with SEND.

As explained in our advice on school closures and SEN provision, in response to the coronavirus pandemic, there have now been two significant temporary changes to the law relating to education, health and care (“EHC”) needs assessments and EHC plans:

• The absolute obligation under section 42 Children and Families Act 2014 to deliver the provision in EHC plans has been temporarily suspended. LAs and CCGs must now use their “reasonable endeavours” to ensure it is made. This is a far less strict duty. We knew this change was coming as the power to introduce it was included in the Coronavirus Act 2020 but we didn’t know when, as the Act required the issuing of a notice by the Secretary of State for Education to bring it into force. This was issued on 1 May 2020. As it stands, this change will be in force from 1 May to 31 May 2020, but it may be extended.
• New regulations have relaxed the deadlines for certain decisions to be made and actions taken under the SEN law framework. These will be in effect from 1 May to 25 September 2020. This change is also not unexpected as the Minister for Children and Families had said in an open letter that this was the government’s intention, but it was unclear when this change would come into effect and how long the amended regulations would be in operation.

Alongside the issuing of the Secretary of State’s notice and the regulations came Department for Education (“DfE”) guidance on EHC needs assessments and EHC plans for the period these temporary legislative changes are in effect.

IPSEA is very concerned about the long-term harm these changes will have for children and young people with SEND even if they only remain in operation for the short-term.

“Reasonable endeavours” to deliver provision in EHC plans

We are particularly concerned that some LAs will use the temporary changes to the law as an opportunity to make blanket decisions either about provision or individual children and young people – i.e. that they can’t arrange certain types of provision or that they can’t deliver the entire contents of an EHC plan for an individual child or young person. This is not what is intended nor indeed permitted – the DfE guidance makes clear that “[t]he local authority or health commissioning body should keep a record of the provision it decides it must secure or arrange. It should then: confirm to the parents or young person what it has decided to do and explain why the provision for the time being differs from that in the plan”. This means LAs will need to explain why specific provision cannot be secured and what steps have been taken to try to secure it.

However, before the law was temporarily changed we know that since schools closed many children and young people have not been receiving the provision specified in section F of their EHC plans regardless of whether they have been attending school or have remained at home. The difference is that families could easily challenge such a failure because the LA was legally obliged to ensure the provision was put in place. These temporary changes to the law will limit families’ ability to do this. As is so often the case, the onus will be on parents/carers to challenge any LA action that departs from the guidance and it’s very likely that they will need advice on the particular circumstances of their case which many families will not be in a position to obtain.

IPSEA welcomes the fact that the DfE guidance makes clear that LAs must first consider whether the provision in an EHC plan can be delivered as set out in the plan before considering whether any changes are necessary. However, given that many LAs so frequently flouted the law before it was relaxed, the likelihood of them complying with this guidance is questionable. We feel that clearer guidance is needed from the DfE on precisely what “reasonable endeavours” requires LAs to do. If, as a parent, you are able to think of a way in which provision in your child’s EHC plan can be delivered, then it’s likely the LA can.

We are very concerned at the lack of guidance for parents/carers and schools on what should be delivered for children and young people on SEN Support. The legislative changes only relate to children with EHC plans (or those undergoing EHC needs assessments), but the majority of children with SEN do not have EHC plans. The guidance is silent on provision for these children and young people, yet many are currently receiving little or no provision, despite having identified SEN.

Relaxation of deadlines in relation to EHC needs assessments and EHC plans

The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”) amend the SEN and Disability Regulations 2014 to relax the deadlines for LAs and other bodies to take certain steps in relation to EHC needs assessments and EHC plans.

IPSEA welcomes the clear message from the DfE that:

“This guidance also confirms which key elements of the processes over EHC needs assessments and plans are unchanged. Notably this includes that a local authority must still consider requests for a new EHC needs assessment.”

However, even before any of the temporary changes coming into effect, we were aware of a small number of LAs who had introduced blanket policies stipulating that no new requests for EHC needs assessments would be dealt with. We are not convinced that such practices will not continue.

The guidance makes clear that if an LA had already missed a deadline before 1 May 2020, the relaxation of the timescales cannot apply because the Amendment Regulations were not in force. This means if, for example, an LA was meant to have issued a final EHC plan within 20 weeks, or made a decision on whether to assess within 6 weeks, before 1 May, then the LA will be in breach of the statutory timescales. However, if a final EHC plan was not overdue by 1 May or if a request for assessment was pending and the 6 week deadline had not passed by 1 May, the guidance offers little protection.

Again, we feel that clearer guidance is needed in terms of what is meant by “not reasonably practicable” or “impractical”. IPSEA is concerned, based on what we have heard from families we support, that some LAs will simply say it is not possible to conduct any assessments, without exploring alternatives such as observations in a school setting (where the child is still attending school) and/or assessments by video or phone. It is crucial that LAs consider circumstances on a case by case basis when determining what is reasonably practicable.

We are particularly concerned about any children or young people due to undergo a phase transfer in September but whose EHC plans have not yet been amended in contravention of the 15 February and 31 March deadlines. Where there is, or there is likely to be, a dispute about the placement to be named in section I, no right of appeal to the SEND Tribunal will be triggered until such time as the LA issues the amended plan. The only reference to this situation in the guidance is the following:

“Local authorities must already have completed this year’s required transfer reviews for a child or young person moving between key phases of education (transfers into or between schools, moves from secondary school to a post-16 institution or apprenticeship, or moving between post-16 institutions). There is no change to the statutory deadlines for these reviews. Where, exceptionally, completion has been delayed, these transfer reviews need to be finalised as a priority.”

Given the frequency with which the phase transfer deadlines are not complied with in normal circumstances, we are concerned that the provision for these children and young people will remain unresolved. However, it should be emphasised that any LA which is in breach of these deadlines cannot rely on the Amendment Regulations to justify further delay and must issue the final amended EHC plan immediately. A failure to do so will be challengeable by way of judicial review. We would encourage any families in this situation to seek advice as a matter of urgency.

Now that these legislative changes are in force, it is vital that the DfE monitors the situation closely. At IPSEA, we will be raising any policy issues brought to our attention by the families we support directly with the DfE.