Last updated 01.03.2021 14:15

We’ve updated our information about how the COVID-19 measures will affect children and young people with special educational needs and disabilities (“SEND”). 

This guidance on how attendance is currently restricted applies until 8 March applies to all schools in England (including independent, boarding, AP and special schools). It does not include maintained nursery schools or pre-reception classes, these are covered by separate early years guidance.

New guidance will apply from 8 March. In addition to schools, this guidance also applies 16-19 academies and special post-16 settings. 

There is additional separate guidance for special settings and for further education (FE) settings. The FE guidance is for: sixth form colleges; general FE colleges; independent training providers; designated institutions; adult community learning providers; and special post-16 institutions.

It’s important to note that this is not statutory guidance – but we expect all schools, colleges and other places of education will use the guidance to plan how they will deliver education.

You can find government guidance for parents and carers here.

The topics below cover:

School re-opening and SEND provision

Before 8 March:

Attendance is restricted to those students defined by the government as “vulnerable” and the children of critical workers. The guidance states that: “the characteristics of the cohorts in special schools and alternative provision will mean these settings continue to offer face to face provision for all pupils, where appropriate”. In effect, special schools, special post-16 institutions and AP will need to continue to offer face-to-face education to their cohorts of students where parents wish them to attend.

The FE guidance also provides examples of students “who would otherwise be completing their courses or apprenticeships in January, February or March [and] are able to attend where it is not possible for their training or assessment to be completed remotely”. Guidance on how apprenticeships can be delivered flexibly at the moment is available here.

In relation to SEND provision it’s important to note that, whilst schools/colleges have had to make changes to the way and/or place that they deliver education to ensure the education environment is as safe as possible from the risk of coronavirus, their statutory duties for children and young people with SEND remain the same. For mainstream settings, this means using their best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made. All settings must have regard to the SEN and Disability Code of Practice 2015 unless they are wholly independent. If your child or young person’s setting is not using their best endeavours during the national lockdown you can complain. This model letter may help.

If you have questions about how SEN Support will be delivered at the moment, ask to speak with the SENCO or staff member responsible for this. See below if your child or young person has an EHC plan.

A school or college’s duties under the Equality Act 2010 still apply – including when applying a behaviour policy (some of which will have been amended for re-opening in the Autumn 2020). Duties under the Equality Act apply to all settings, including independent ones.

The view of the government is that schools and colleges have not become less safe for students but the aim of restricting attendance is to reduce overall social contact in communities.

“Vulnerable” students and children of critical workers

To that end, it does appear that a broader range of students will be considered either “vulnerable” (to use the government definition) or children of a critical worker. 

Who are “vulnerable” children?

The full list includes children who:

  • are assessed as being in need under section 17 of the Children Act 1989, including children and young people who have a child in need plan, a child protection plan or who are a looked-after child
  • have an education, health and care (EHC) plan
  • have been identified as otherwise vulnerable by educational providers or local authorities (including children’s social care services), and who could therefore benefit from continued full-time attendance, this might include:
    • children and young people on the edge of receiving support from children’s social care services or in the process of being referred to children’s services
    • adopted children or children on a special guardianship order
    • those at risk of becoming NEET (‘not in employment, education or training’)
    • those living in temporary accommodation
    • those who are young carers
    • those who may have difficulty engaging with remote education at home (for example due to a lack of devices or quiet space to study)
    • care leavers
    • others at the provider and local authority’s discretion including pupils and students who need to attend to receive support or manage risks to their mental health 

IPSEA suggests that if you think your child or young person may be included in this category and entitled to attend school/college, then you should discuss this with their teacher and/or the SENCO or senior management team. If you are unable to agree that your child or young person should attend, you can complain and this model letter may help.

Whilst parents of “vulnerable” students are “strongly encouraged” to take up a place at school during the national restrictions, the guidance is clear that where a parent does not wish their child to attend during the period of lockdown then the absence should be authorised. 

This seems to be the “leave of absence” that the guidance refers to.  Even if a school does grant a leave of absence for a student in the “vulnerable” group, schools are expected to discuss with parents the reasons for the leave of absence and ensure that the welfare of the student is secured and that they can access appropriate education and support whilst at home.

If your child or young person has complex medical needs requiring aerosol generating procedures (APGs), such as tracheostomies, and are concerned about how they will be safely carried out at school there is some guidance on this here.

The guidance on restricting attendance also states that where a setting has to temporarily stop on-site provision on public health advice, they should inform the local authority and discuss alternative arrangements for vulnerable children and young people – with local settings working collaboratively to secure face-to-face education for students in this category.

The guidance also makes clear that the risk assessments used in the previous national lockdown where schools restricted attendance should not be used to filter students in or out of attendance.

The guidance is clear that settings should ensure that appropriate support is made available for pupils with SEND, can continue to deploy teaching assistants and enable specialist staff from both within and outside the school to work with pupils in different classes or year groups.

The guidance states that the Department for Education will “provide further advice to schools in due course on what should be included in pupils’ attendance records in end of year reports”.

From 8 March:

Schools and colleges will re-open to all on 8 March. The guidance for parents explains:

All primary pupils should attend school from this date.

All secondary pupils and college students will be offered testing from 8 March. The return of pupils can be phased during the first week to manage the number of pupils passing through the test site at any one time. If you are unsure about how your child’s school is arranging this and when your child is expected to return, you should contact their setting to check.

  • Those who consent to testing should return to face-to-face education following their first negative test result.
  • If you or your child (if they are aged over 18) do not consent to testing, they will not be stopped from going back and will return in line with their school or college’s arrangements.
  • If you are a parent of a child who is classed as “vulnerable” (see above) or if you are a critical worker, your child should continue to be able to attend school throughout, unless they receive a positive test result.

From 8 March, school attendance is mandatory and parents’ duties under s.7 Education Act 1996 apply. This means that if your child is of compulsory school age and on the roll of a school, from 8 March regular attendance is expected and action may be taken against you for unauthorised absences. 

Compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which they turn 16. 

The guidance confirms that “Where a secondary age pupil is not expected to attend due to their schools testing programme in the week of 8 March, absence will not be penalised” and they should also continue to receive remote education.

It also remains thatIf your child is unable to attend school because they are following clinical or public health advice related to coronavirus (COVID-19), absence will not be penalised”. This includes when they are required to self-isolate because they have symptoms, have tested positive for coronavirus or have come into close contact with someone who has. See below information on shielding if your child is clinically extremely vulnerable.

Parents, carers and young people cannot be prosecuted for non-attendance of those who are over compulsory school age but failure to regularly attend without agreement may mean that the young person does not receive home-schooling and it may affect their ability to stay on the course. 

As above, educational setting’s statutory duties for children and young people with SEND will remain the same. For mainstream settings, this means using their best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made. All settings must have regard to the SEN and Disability Code of Practice 2015 unless they are wholly independent

If you have questions about how SEN Support will be delivered, ask to speak with the SENCO or staff member responsible for this. See below if your child or young person has an EHC plan.

A school or college’s duties under the Equality Act 2010 still apply – including when applying a behaviour policy (some of which will have been amended for re-opening in the Autumn 2020). Duties under the Equality Act apply to all settings, including independent ones.

What about those who were shielding?

Students who are clinically extremely vulnerable are advised not to attend school or other educational settings until further notice. Remote learning should continue to be provided for these students.

If your child is not attending school because they are clinically extremely vulnerable you should not be penalised. Your child’s setting may check that they are advised not to attend school or college by asking to see a copy of the shielding letter sent to you.

Students who live with someone who is clinically extremely vulnerable, but who are not clinically extremely vulnerable themselves, are expected to attend school or college.

Updated guidance for special settings notes that in “exceptional circumstances” the health risks to a particular clinically extremely vulnerable child or young person may need to be balanced with the wider impact not attending would have on them and their family. If you think this applies to your child or young person, you should talk to their setting which should “work with parents and other organisations to agree the best arrangement for the [child/]young person and their family to ensure they continue to receive the support they need”.

The guidance for those who are clinically extremely vulnerable (and who are advised to shield) was updated on 24 February 2021.

Are the rules for special schools and alternative provision (AP) different?

The same guidance applies to all schools – even though separate guidance has been issued for specialist settings and FE settings to cater to their individual characteristics.

As all the children in special schools and special post 16 settings and most (if not all) of those in AP will fall into the government’s “vulnerable” category, these settings are expected to be open to full-time face-to-face education for all students now and continue to be after 8 March.

In relation to hospital schools, the continuing provision of full time education should happen where it’s “safe and feasible” to do so and in line with hospital infection controls.

The updated guidance for specialist settings sets out how they should deal with circumstances where they cannot provide their usual interventions and provision at adequate staffing ratios, or with staff with vital specialist training. If this happens, the setting:

  • May need to alter the way in which they deploy staff and use existing teaching and support staff more flexibly;
  • Should communicate remaining concerns to the local authority or academy trust;
  • Should work “collaboratively with families to agree an approach that is in the child or young person’s best interests.”

The guidance also makes clear that although the previous risk assessments can’t be used to filter attendance, they may be useful to temporarily prioritise what provision to make if full-time education for all is not possible.

What about residential and boarding schools?

Before 8 March:

  • Students classed as “vulnerable”, children of critical workers and any other pupils who had already travelled to school before the lockdown should remain. 
  • Students classed as “vulnerable”, children of critical workers and any other pupils who had not already travelled to school before the lockdown can do so.
  • Other students who had not returned should stay at home and receive remote education.

From 8 March:

All pupils can return to boarding and residential schools and colleges.

The updated guidance for special settings states:

“All pupils and students can travel between their boarding provision and home, including those who attend weekly boarding provision. However, residential providers should support pupils and students to reduce travel between home and educational accommodation, for example only travelling when necessary for the purpose of education.”

Remember, the duty to secure the provision in the EHC plan under s.42 Children & Families Act 2014 continues. 

Is it possible to ask for my child to continue receiving education at home once the schools fully re-open?

If your child has an EHC plan and, for whatever reason, you feel that your child would actually be better off remaining at home for the longer term, you have two options: elective home education or education otherwise than in a setting (“EOTAS”).

  • If you choose to electively home educate, your LA is likely to conclude that you are making your own arrangements for the child’s education, and so will no longer be obliged to make any of the provision in your child’s EHC plan.
  • The alternative is asking for your child’s EHC plan to be amended to set out EOTAS rather than naming a school. If you were to want this you can ask for the EHC plan to be amended during any ongoing or upcoming annual review process or seek an early review. If the LA did not agree, you could appeal to the SEND Tribunal. However, EOTAS can only be set out in an EHC plan where it can be demonstrated that it would be “inappropriate” for the provision to be made in a school (s. 61 Children and Families Act 2014).
  • If your child doesn’t have an EHC plan it is likely that the only option would be elective home education. However, the LA has a legal duty to secure suitable, full-time alternative education for those children of compulsory school age who, by reason of illness, exclusion or otherwise, may not for any period receive suitable education unless such arrangements are made for them (section 19, Education Act 1996). This duty is likely to apply to children who are school refusing due to anxiety or similar difficulties. Details of how to get temporary education put in place may be found here.

Can I ask for my child to attend school part-time?

  • For children with EHC plans who are receiving EOTAS, this is usually provided for all of a child’s education, however, it is possible for any part of a child’s special educational provision to be delivered otherwise than at school providing the LA is satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.
  • It is possible for children without EHC plans who are being home-educated to receive part of their education at a school. Such arrangements are sometimes known as ‘flexi-schooling’. Schools are under no obligation to agree to such arrangements, but some are happy to do so. When a child is flexi-schooled, the parents must still ensure that the child receives a suitable full-time education but the element received at school must be taken into account in considering whether that duty is met.

What if there’s a local outbreak?

The government’s message is that any restrictions on education are a last resort. The Department for Education (“DfE”) contingency guidance is in place which states:

If there is extremely high prevalence of coronavirus (COVID-19) and existing measures have failed to reduce community transmission, restrictions affecting education and childcare may be necessary as a last resort to reduce the overall number of social contacts in our communities and help protect the NHS.”

The guidance is clear that restrictions on attendance require “explicit approval of the DfE” and should not be used because a setting faces operational challenges.

There is a lot of guidance, but do schools actually have to provide remote education?

The Department for Education ("DfE") has issued what’s called a “direction” which means from 22 October 2020 most schools must provide remote education when children travelling to or attending them would be against Public Health England or Secretary of State guidance or the law relating to COVID-19.

In a note explaining the direction, the DfE summarises these situations as where a class, group of pupils, or individual pupils need to self-isolate, or there are local or national restrictions requiring pupils to remain at home.

This applies for the rest of the 2020-21 academic year to

  • children of compulsory school age; and
  • children who are under compulsory school age but are usually taught in a class of children who are compulsory school age (e.g. children in reception)

who are registered at schools in England which are fully state funded (including independent schools named in EHC plans, pupil referral units and alternative provision academies).

You can find out about different types of schools and how they are funded here. Compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which they turn 16.

This covers children who live in Scotland, Northern Ireland or Wales but attend school in England and where travelling to or attending their school would be against guidance issued by a public authority for the country they live in.

The direction also means these schools must have regard to DfE guidance on remote education when they provide it.

The guidance states:

“The remote education provided should be equivalent in length to the core teaching pupils would receive in school and should include recorded or live direct teaching time, as well as time for pupils to complete tasks and assignments independently. As a minimum [schools] should provide:

  • Key Stage 1: 3 hours a day on average across the cohort, with less for younger children
  • Key Stage 2: 4 hours a day
  • Key Stages 3 and 4: 5 hours a day”

The guidance which applies now and after 8 March, also makes clear that schools should work with families to deliver an ambitious curriculum appropriate for the level of need of their students with SEND, bearing in mind that many of these students won’t be able to access remote education without adult support.  Schools should make reasonable adjustments as necessary so students with SEND can access remote education alongside their peers.

Regulations introduced in February 2021 require schools with state-funded pupils (including independent schools e.g. that are named in EHC plans) to publish information on how they are complying with the requirement to provide remote education. FE colleges should also publish information on remote education.

There is guidance on how schools can get help with delivering remote education and information explaining how schools and local authorities can get support to secure IT and internet access for certain pupils.

In addition, OFSTED has produced a short guide to remote education. It does make the point that remote education isn’t digital education – worksheets and textbooks may be easier to access. Their guidance also states that live education is not always the best approach.

What about assessments and exams?

Key stage 1 and 2 tests planned for summer 2021 have been cancelled.

GCSEs, AS and A level exams have been cancelled and grades will be based on teacher assessment. Teachers will receive guidance and training from the exam boards to support this.

The FE guidance confirms that exams and assessments for vocational and technical qualifications that require students to demonstrate professional or occupational competence can continue this March. However, the guidance says that if a student can’t take their exams, then arrangements will be put in place to make sure they are not disadvantaged. It is not yet clear what the position will be from April.

It’s possible for on-demand assessments including for functional skills qualifications to continue, see here for more information.

What provision will school/college make to help a child/young person with SEN catch up?

This is going to be something to discuss with the setting. We expect most settings to review their students following their return to school to try to identify gaps in learning and barriers to learning arising from their prolonged periods of absence.

To assist in supporting the return to school and catch up provision, grants are available for state-funded primary, secondary and special schools in the 2020-21 academic year.

The government previously stated that, with regards to children with “complex needs” it:

“strongly encourage[s] settings to spend this funding on catch up support to address their individual needs, including speech and language therapy, travel training, education psychologist time, or other small group and individual interventions. This could be either direct (i.e. the specialist spending time with the pupil) or indirect (i.e. the specialist spending time with school staff to design an intervention that the teacher/teaching assistant then delivers regularly)”

Recovery premium” funding for schools has recently been announced.

Extra funding has also been provided to the 16 to 19 tuition fund to support small group tuition for 16 -19 year old students where learning has been disrupted.

What is the National Tutoring Programme and how can my child access this?

This is a programme available to state (i.e. maintained and Academy) schools: so how it is accessed by any child will be determined by their school.  Your child’s school is the first point of contact for any information about how they are using this programme and what support your child might receive through it.

There are Academic Mentors (who will be employed by schools in the most disadvantaged areas to provide subject specific tuition to individual children and small groups) and Tuition Partners whose tutoring services, which will include  online, face-to-face and hybrid models and small-group and one-to-one tuition, can be secured by schools.  This should be available by the second half of the autumn term 2020.

However, these extra funding streams are not available to sixth form colleges and other institutions within the FE sector. The FE guidance says mainstream FE settings should “agree on a plan to support catch up” which is supported through the 16-19 tuition fund for the 2020-21 academic year.

For children/young people with SEN – if it becomes clear that they will require educational provision which goes beyond what the setting can provide from within its current resources (or through the additional funding the school has been provided with) then it may be necessary to use the Children and Families Act 2014 process to secure additional support – for example, by requesting an EHC needs assessment if currently receiving SEN Support, or by seeking changes to an EHC plan which no longer meets need.

What about repeating a year?

In law, education out of year (or repeating a year) is capable of being special educational provision ("SEP").  IPSEA has always recommended that it is specified in the EHC plan to ensure enforceability. Where a child or young person’s SEN requires such SEP, then the law says this must be provided.

Remember that considerations for children and young people with SEN include whether they may need more time to complete their studies.  Many children and young people with SEN (particularly those undertaking post 16 education and training) may have missed a substantial proportion of their course and be unable to “catch up” what has been missed in 6-12 weeks.

In all cases, SEP is driven by what is required based on the evidence.

In all cases, the SEP required must be specified and quantified in the child/young person’s EHC plan

In all cases an EHC plan must be maintained as long as it is necessary to secure the child or young person’s SEP.

What about extending provision in a school setting for those aged 19 and over?

School funding regulations do not allow for those aged over 19 to remain in a school setting, unless approval is given by the Secretary of State for Education.

Where a local authority decides that a young person would be best served by remaining in a school setting after they have turned 19 years of age, it can apply for a relaxation of the normal rules for continuing financial support to schools of all kinds for students aged 19 and over, under the established Education and Skills Funding Agency process.

The government states that this may be necessary in “exceptional circumstances”.  However, IPSEA has been advised previously that the process can be relatively straightforward and local authorities may want to consider whether such application is necessary in light of the COVID-19 crisis and individual student’s circumstances.

What about face coverings?

The main guidance on face coverings in education was updated on 1 March. It will be reviewed again at Easter.

In summary, this applies to pupils in Y7 or above. The advice is that pupils should wear face coverings when

  • moving around indoors in areas where social distancing is difficult to maintain
  • in classrooms and during activities unless social distancing can be maintained. This does not apply in situations where wearing a face covering would impact on the ability to take part in exercise or strenuous activity, for example in PE lessons.

The guidance is clear that face coverings do not need to be worn by pupils and students when outdoors on the premises.

The guidance is clear that “No pupil or student should be denied education on the grounds that they are not wearing a face covering.”

There are exemptions from wearing a face covering. The guidance uses the example of pupils who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability, or if staff are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expression to communicate.

PHE has produced a face coverings exemption toolkit which might be of use to parents and carers and can be found here.

Any policy about face coverings must be developed in accordance with the setting’s duties under Equality Act 2010.

Please note that while children in primary school do not need to wear a face covering, Head Teachers have discretion to ask staff/visitors to wear them in indoor areas where social distancing is not possible (excluding classrooms).

If you or your child or young person has a concern or question about how face coverings are going to be required in a settings, then you should speak with the setting.

What about home to school transport?

The legal duties around school transport have not changed.

Guidance was published in August and local authorities were written to in July by the Department for Education (“DfE”) with its expectations for planning for transport for the re-opening of schools and colleges. The guidance on restricting attendance has some updated suggestions about how local authorities (“LAs”) can do all that is reasonably practicable to minimise the risk of transmission of COVID-19.

The DfE asks that LAs encourage staff and pupils travel by bike or foot where it is safe and appropriate. It is acknowledged that there will be an inevitable increase in congestion as more people travel to school by car and LAs are also asked to plan for this. Suggestions include staggering start and finish times, contracting private coaches and designating some bus services as school-only services.

As all plans are to be developed locally, the best place to start in understanding the plans in your area is by using the LA’s Local Offer to find out more information.

If your child is eligible for home-to-school transport, then the LA continues to have duty to secure suitable, free transport for your child.  There has been no change to the statutory duties of local authorities with regards to transport for eligible children under Education Act 1996.

Information about eligibility for free home-to-school transport can be found on our website.

In the guidance, this type of transport is included in what is called “dedicated” transport.

Providers are expected to do: “all that is reasonably practicable to maximise social distancing where possible and minimise the risk of transmission”. To achieve this, they must identify the risks, work through the controls set out in the guidance and adopt appropriate measures to address the risk, work in the local context and ensure attendance at school.

The controls are similar to those set out for reopening schools and colleges and include:

  • preventing pupils/staff/drivers/escorts with COVID-19 symptoms (or who have a household member with symptoms) from using dedicated transport;
  • cleaning hands frequently and supporting good respiratory hygiene (or planning for an inability for this to happen, e.g. where a child has complex needs);
  • ensuring good ventilation on dedicated transport where possible;
  • minimising contact and mixing through the use of “bubbles” where possible;
  • wearing face masks when travelling on dedicated transport, for those aged 11 and above (unless exempt).

In relation to eligible children with SEND, the guidance states that LAs should take account of the particular needs of the children using the transport and the views of the parents and school.  This will be relevant in considering whether the transport is suitable for the purposes of the duty under the Education Act 1996.

Although PPE is not generally necessary for transport, where it is required, it should be provided.  There is further guidance on supporting children who may spit or require physical contact or who need support for complex needs, for example with tracheostomies.

The guidance is clear that creative solutions may be needed to fulfil the duties under the Education Act 1996 in relation to eligible children.  However, it emphasises that proposals such as travel budgets for mileage can only be implemented with parental consent (and that this may change over time) and that this would not be appropriate where it meant a child who usually uses dedicated transport had to use public transport.

The guidance also makes clear that a parent could be a child’s personal assistant on school transport, where the parent agrees to do this, but that they should not be responsible for any other child on the transport.

It may be the case that schools and/or local authorities update their transport behaviour policies in light of the guidance – but those behaviour policies and their implementation must always comply with duties under the Equality Act 2010.

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What should early years settings, schools and colleges do to reduce the risk of transmission?

The guidance on restricting attendance states that educational settings should use a ‘hierarchy of controls’ to reduce spread, including:

  • ensuring pupils and staff stick to the guidance on self-isolation if they or a member of their family displays symptoms;
  • cleaning hands more often than usual;
  • ensuring good respiratory hygiene (‘catch it, bin it, kill it’);
  • cleaning frequently touched surfaces often;
  • minimising contact and mixing by altering, as much as possible, the environment (such as classroom layout) and timetables (such as staggered break times).

Settings were required to plan in line with the guidance but each setting will be implementing strategies based on their individual circumstances. Settings have been advised (by unions and legal advisors) to update their health and safety assessments in light of the current COVID situation. Note that these are not the assessments used in the first lockdown in relation to individual children, but the risk assessments schools undertake with regards to site, staff and pupil safety in general. If you have any questions about what specific steps your child or young person’s setting is taking, you should speak with the setting.

The guidance on safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE) sets out the strategy for infection prevention and control, including the specific circumstances in which PPE should be used.

The examples given of the “very small number of cases” where PPE would be required includes:

  • children or young people whose care already routinely involves the use of PPE due to their intimate care needs;
  • children or young people who begin displaying symptoms of coronavirus and need direct personal care until they can return home.

If a setting requires but is unable to obtain PPE the guidance states they should contact their local authority for assistance.

The guidance also sets out specific steps to be taken to support children with complex medical needs (including tracheostomies) and those who might require personal contact or may spit.

Where a pupil routinely attends more than one setting part-time (a dual placement), they can attend both settings which should work together to minimise any risks. The guidance states that the pupil should not be isolated to manage these risks.

Settings should have planned for how children and young people who do require more complex, close contact support will return to education but if you have any questions about those plans, contact the setting to discuss.

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EHC needs assessments and EHC plans

If my child has an EHC plan, doesn’t the local authority (“LA”) have a legal duty to deliver that provision?

Last year, the Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty.  This meant that during the specified period of notices made under the Act (1 May to 31 July 2020) LAs needed to do whatever they reasonably could to put provision in place, but if they could not do so they would not necessarily be breaching the law.

The duties under s.42 and s.43 Children and Families Act 2014 are in full force at this time. This means that LA’s have an absolute duty to secure the special educational provision specified in an EHC plan and settings named in EHC plans that are not wholly independent must admit the child/young person.

The guidance for specialist settings states that if it becomes difficult to secure provision that LAs, settings and health providers should:

"work with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of, and circumstances specific to, the child or young person, avoiding a ‘one size fits all’ approach."

The guidance, however, reiterates that there is no intention to downgrade the statutory duty of LAs under s.42 Children & Families Act 2014 at this time. It does say that the situation will kept under review.

However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the LGSCO has set out how it is going to consider matters during the pandemic. You can find more information on our website here.

Do the local authority (“LA”) still need to carry out EHC needs assessments?

IPSEA is aware of a number of LAs who indicated that they would not be carrying out any EHC needs assessments. Legally, this is not an option the government did not suspend the duty to consider requests for assessment or to conduct them. The guidance on EHC needs assessments and plans during the COVID-19 crisis made clear that requests for assessment were to continue to be considered.

Decisions about whether or not to assess continue to be made solely on the legal test.  If a LA refuses to assess, then it must send out the statutory notification (along with notice of appeal rights and deadlines) to the parents or young person.

In IPSEA’s view it would not be acceptable for an LA to refuse to assess due to the fact the child or young person has been out of school. Time out of school may in fact make it more, rather than less, likely that a child or young person may require support through an EHC plan.

However, the deadlines which previously applied to LAs when considering EHC needs assessment requests were relaxed from 1 May 2020 to 24 September 2020. Where it was not reasonably practicable or impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they instead had to complete that step as soon as it was practicable for them to do so.

These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’), which amend the timescales in the SEN and Disability Regulations 2014. The changes were in force until 25 September 2020 so do not apply to deadlines that fell on or after 25 September 2020. Remember, they do not apply where the deadline had already passed before 1 May 2020 – because the Amendment Regulations can only be relied on for the period since they came into force.

The guidance has been updated to reflect the fact that from 25 September 2020 the relaxations no longer apply and “any case that is in progress after that date to which the coronavirus exception has previously been applied will become subject to the usual statutory timescales (such as 6 weeks for needs assessments, 6 weeks for the provision of advice or information and 20 weeks for issue of a final plan)”.

The guidance makes clear that LAs, health commissioning bodies and others with a role in the process need to consider how best to progress the matter in a timely way from 25 September 2020.  It emphasises the necessity of discussing this with parents and carers affected.

If practical barriers are raised by professionals asked to provide advice and information during an EHC needs assessments, the relevant professional body may have published guidance on how they can operate during the Coronavirus pandemic. For example, the British Psychological Society has developed specific Coronavirus resources for psychologists.

Will annual reviews still need to be carried out?

As above, the Amendment Regulations mean that annual reviews still need to be carried out but the usual deadlines were relaxed until 25 September 2020, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”.. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this.

From 25 September 2020, the relaxations no longer apply and LAs must conduct annual reviews in the usual way. You can find more information about annual reviews on our website, here.

IPSEA is aware that for many children and young people with SEND, there will have been changes to their needs in the period in which education was disrupted.  In addition, the different ways re-opening has been undertaken will present different challenges for children and young people with SEND.  If you feel there is an urgent need to amend the provision or placement in the child or young person’s EHC plan, speak to the school and the local authority (“LA”) about this to see what review mechanisms could be put in place.  You will find more information on our website, here.

Furthermore, LAs are required to conduct and conclude annual reviews in anticipation of phase transfer by the usual statutory deadlines. The guidance for specialist settings makes clear how important it is that annual reviews continue and the statutory deadlines are observed. It suggests that it may be appropriate to use electronic means to circulate information or to hold virtual meetings as long as parents/carers, children and young people are still able to participate in the process in a meaningful way.

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Social care provision

What are the main implications of the Coronavirus Act 2020 on social care provision?

Currently the legal changes only affect adult social care (for over 18s), but the Department for Education has issued guidance relating to children’s social care.  This confirms that social care services for disabled children and young people should continue and includes examples of this working effectively during the pandemic. It has also added some information for children’s social care teams to its guidance for educational settings (see question 1 above). If you receive direct payments and are unable to secure the provision they were agreed for as a result of Coronavirus, you should contact your local authority (“LA”) to agree alternative arrangements.

In relation to adult social care, government guidance sets out the changes ('easements') to the Care Act 2014 to help LAs prioritise care and support during the coronavirus outbreak. The guidance makes it clear that:

"The Coronavirus Act does not give authority to block, restrict or withdraw whole services. It enables Local Authorities to make and apply person-centred decisions about who is most in need of care, and who might need to have care and support temporarily reduced or withdrawn in order to make sure those with highest need are prioritised."

In addition, the LA is expected to apply an ethical framework to decision making whenever it might consider if an easement should be used. 

The easements took legal effect on 31 March 2020. They are temporary and being kept under review. The guidance states that the easements "should only be exercised by Local Authorities where this is essential in order to maintain the highest possible level of services. They should comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long as possible". Section 3 of the guidance sets out what these powers change.

The Care Quality Commission website includes information on LAs using easements. On 1 February 2021, no LAs were doing this.

The government has also produced guidance for people receiving direct payments.

OFSTED began visits to local authorities and children’s social care providers in September, to look at the experiences of children and how local authorities and providers have made the best possible decisions for children in the context of the pandemic.

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Exclusions and children out of school

If my child was out of school before the school closures were ordered, do I still have an entitlement to alternative education?

If your child was not receiving any education prior to the pandemic, the local authority has a continuing duty to provide education for all children of compulsory school age – you should write to your local authority asking for support to be put in place.

What is the effect of coronavirus (COVID-19) on governing boards’ duties to consider reinstatement of excluded pupils, and the process for independent review panels (IRPs)?

The rules that apply depend on when the exclusion happened.

New regulations applied to maintained schools, academies (including alternative provision academies, but not 16-19 academies) and pupil referral units for exclusions which took place from 1 June to 25 September 2020. This allowed for governing board meetings to be held remotely and the timescales for meetings to be extended in particular circumstances. For more detail, the changes are explained in this statutory guidance.

From 1 June 2020 to 24 March 2021:

For exclusions between 1 June 2020 and 24 March 2021, the deadline for parents to apply for an independent review has increased to 25 school days. Schools must wait for this extended period to pass before removing the pupil's name from the rolls.

From 25 September 2020 to 24 March 2021 new Amendment Regulations apply.

For exclusions occurring between 25 September 2020 and 24 March 2021, meetings of governing boards or independent review panels may be held via remote access if:

Can a school exclude a pupil because of a COVID-19 risk assessment or something else related to the virus?

State schools and pupil referral units are required to follow statutory exclusion guidance. Pupils can only be excluded for disciplinary reasons: they cannot be excluded because a school cannot meet their needs or as the result of a COVID-19 risk assessment.

Exclusions from independent schools and other types of settings is governed by the behaviour/exclusion policy.

All settings must comply with duties not to discriminate against disabled pupils.

Any amendments to a school’s behaviour policy, made in light of COVID-19, must be in accordance with the setting’s duties under Equality Act 2010.

You can find more information about exclusions here.


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School/college placement in September

Has there been any impact of COVID 19 on Admissions Appeals for school places?

The government has issued guidance to assist those involved in admissions appeals. From 24 April 2020, some of the requirements set out in the School Admissions Appeal Code 2012 have been relaxed as a result of the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These regulations will be in force until 30 September 2021. The new regulations consider timescales and seek to enable admissions appeals (typically held in person) to continue in line with COVID 19 social distancing restrictions by allowing admissions authorities some flexibility in the way they manage appeals.

Our child is moving to a new phase of education in September, but the local authority (“LA”) hasn’t issued the amended EHC plan/started the review.

LAs have a legal duty to review and amend an EHC plan when a child or young person transfers from one phase of education to another. For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer; for all other phases of transfer, such as from primary school to secondary school, the deadline is 15 February in the year of transfer. These deadlines are set out in Regulation 18 of the Special Educational Needs and Disability Regulations 2014.

These deadlines have not been relaxed due to Coronavirus.

If your LA is late in reviewing or amending your child/young person’s EHC plan, you should write using our model letter and ask the LA to treat this as a priority. Remember to keep a copy of any letter or email you send. If you don’t get a reply within five working days, or if you need further advice, you can book an appointment to speak with us.

SEND, moving on to the next stage of education and the impact of the problems with grades

If you need advice on this issue, we suggest you book an appointment to speak with us.

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Are there any changes to the requirements on early years settings?

There were temporary changes introducing flexibility into the requirements of the early years foundation stage (“EYFS”) from 24 April which ended on 25 September 2020. From 26 September to 25 November disapplications around staffing qualifications in ratios continued.

Guidance has been updated to reflect new regulations which came into force on 26 September 2020 allowing some temporary changes to be reapplied if COVID-19 related restrictions are imposed by government and its not reasonably practicable for providers to comply with EYFS. The EYFS provider could rely on this if it’s not located in an area subject to restrictions where the restrictions prevent it from complying with the EYFS, for example, because their staff live in the area where the restrictions apply and are not able to get into work. The new regulations expire on 31 August 2021.

The latest guidance says early years providers “should use their best endeavours to still complete the [Early Years Foundation Stage Profile] for children in the summer term, if at all possible, and to provide this important information to parents and to year 1 teachers, should the situation at the time allow.” However, there will be no oversight of this by the local authority or DfE.

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Making a complaint or challenging a decision

What can I do if I am unhappy with the proposals regarding my child’s education?

If your child does not have an EHC plan, or your complaint is about something the school have done, you should raise this with the school..

If your complaint is about the provision in a child or young person’s EHC plan not being made, you should complain to the local authority ("LA"). Our model letter 6 may help you do this.

If you are unhappy with a decision by the LA about an EHC needs assessment or about the content of an EHC plan, you can appeal to the SEND Tribunal – see the question below for more information

Will SEND Tribunal appeals continue?

Yes – please see our SEND Tribunal update.

The SEND Tribunal has been holding hearings on paper (i.e. written evidence only), by telephone or by video since Monday 23 March 2020. With these measures, it is expected that there should be no need to adjourn hearings if the parties are ready to go ahead, even though they may not be able to take place in person. A barrister from Landmark Chambers has written a blog about his experiences of a video hearing. 

The Tribunal has asked parties not to call the Tribunal until 2 days before hearings if they haven’t heard anything as, like every public service, they are affected by staff shortages as a result of COVID-19.

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Mass asymptomatic testing and SEND

The “rapid testing programme” continues to be rolled out.

From 8 March, secondary schools and FE colleges should offer their students testing on-site. They should offer 3 tests, 3 to 5 days apart and have the flexibility to consider how best to deliver this but should prioritise vulnerable children and children of critical workers, and year groups 10 to 13. Results should be ready after 30 minutes.

After their first 3 tests at school/college, secondary school pupils and FE students are recommended to test themselves at home twice a week. Small on-site testing facilities can remain at mainstream settings for those who are unable to home test.

Students of special schools and colleges who are unable to have an onside test can test at home and should be provided with home testing kits without having to attend their setting first. Full scale on-site testing can remain at specialist settings beyond the initial return to school testing phase.

Members of the pupil’s household and/or support bubble can also get a twice weekly test and all primary and secondary school staff should be tested twice a week.

All testing is voluntary and therefore requires parental consent (or the consent of the young person if they are over 18). Admittance is not dependent on participation in the testing programme (see above for information on attendance).

A testing handbook was issued for mainstream schools on 23 December 2020 but appears to have been withdrawn from the Department for Education website and under review at the time of this update.

The guidance for schools states that pupils aged 11 should be tested by an adult. Pupils aged 12 to 17 should self-swab under adult supervision. Those 18 and over are expected to self-swab and share their result with assistance if needed. For some children and young people with SEND adjustments will be required.

Although the testing guidance for specialist settings is not expressed as being intended for students with SEND attending other settings, IPSEA’s view was that some of the adjustments proposed for special schools were also helpful for students with SEND attending mainstream settings. The Department for Education website now refers to this guidance under the heading “Specialist settings and pupils and other students with SEND” – so it seems that it is taking a similar view.

In particular, the guidance suggests:

  • Discussing and agreeing strategies with children, young people and their families to reduce anxiety and put in place appropriate reasonable adjustments;
  • Using risk assessments to ascertain which students cannot self-swab and/or will require extra support or reasonable adjustments;
  • Using a trusted adult from the settings to support the self-swab or whether, in exceptional circumstances, a parent attends to support the student self-swab or to swab the student themselves – this is expressed as being a possible reasonable adjustment for a disabled student. Appropriate instructions and supervision would be required;
  • Using suitably qualified staff to conduct the swabs where students are not able to do so themselves;
  • Allowing a variation on the swabbing technique if required - a nose swab from both nostrils or a throat swab alone may suffice.

The setting that your child or young person attends will be able to give you more information on their programme and how the needs of the individual student will be supported.

Following an announcement by Public Health England on 20 January, the “daily contact testing programme” (testing pupils who are identified as a contact of someone with a positive COVID test) is paused. Isolation at home (with online learning) for ten days will be required as before. 

Further information

Where can I find more information?

The Council for Disabled Children (CDC) has launched two new email inboxes aimed to answer questions, collate resources and share information on COVID-19 and the impact on children and young people with SEND and disabilities.

Questions can be sent to the ‘CDC questions’ inbox, [email protected]. The CDC will collate Frequently Asked Questions (FAQs) and share them with the Department for Education and Ministers as appropriate, in order to publish an FAQs newsflash each Friday. To receive the FAQs newsflash please sign up to their mailing list, selecting the ‘CDC Digest’ option.

The ‘CDC resources’ inbox, [email protected], is for parents, carers, sector professionals and practitioners to share resources, to support families of children and young people with SEND and practitioners across the disabled children’s sector. The CDC will add these resources to their COVID-19 Support and Guidance webpage. The webpage is kept under continuous review.

Additionally the government has issued:

If you are a low-income family and your child or young person (up to the age of 17) is “disabled or seriously ill” you may be able to access support from the Family Fund. This fund will receive a multi-million pound grant to assist it in providing vital equipment to low-income families, including the those with children or young people with special educational needs and disabilities. This could include computers, specialist equipment and educational toys. Families in England can find out more about this, including the eligibility criteria, and apply for grants from Family Fund directly here.

Other charitable organisations may also be able to assist.

As well as providing these updates the legal team also deliver live training in various areas of special educational needs law. If you would like to learn from them take a look at our upcoming training sessions.