IPSEA update on COVID-19, school closures and SEN provision Information accurate as of 25.03.2020 15.00pm We’ve updated our list of FAQs on how the COVID-19 measures will affect children and young people with special educational needs (“SEN”). What are children and young people with SEN’s entitlements when schools are closed? All schools have been ordered to effectively close, retaining a skeleton staff to provide education for the children of key workers, and ‘vulnerable children’. There is further guidance now available about who is a vulnerable child which can be found here. Vulnerable children include those who have a social worker and those with an education, health and care (“EHC”) plan. The majority of children with SEN, who receive SEN Support at school but do not have an EHC plan, would be expected to stay home unless they have a social worker or a parent or carer who is a key worker but see below. The Government has now released further guidance for schools, colleges and local authorities setting out their approach to maintaining educational provision. This includes a full list of key workers. However, the key message remains: If it is at all possible for children to be at home, then they should be. Yesterday, the Secretary of State for Children, Vicky Ford, issued an open letter to children and young people with SEN), their parents/carers and families, and all others who support them. The full text of the letter can be found here. In this letter, the Minister makes clear that: “[…] nurseries, schools, special schools, colleges and other training providers should undertake a risk assessment to establish the individual needs of each child or young person with an Education, Health and Care (EHC) plan. This assessment should incorporate the views of the child or young person and their parents. This will inform the decision about whether they should continue in school or college, or whether their needs can be met at home safely. If needs are best met at schools or colleges, we will support their school or college to meet their needs, wherever possible. For those on SEN support, schools, colleges and local authorities have discretion to use the same risk judgement to decide whether home or school is the safest setting for these children. It is, however, important that as many children as possible remain at home during this time in order to help reduce transmission rates.” The government’s advice is to speak to the local authority if your child’s school is closed and that it will be the local authority’s job to redirect you to a local school in your area that your child can attend. The Government had indicated in earlier announcements that schools in local areas may need to pool resources. Therefore, our current advice is that a local solution is likely to be best. Talk to your school, or your local authority if the school has closed, to find something that could be put in place. If you feel strongly that your child needs to continue receiving (at least some) educational input, the key thing to flag is if there could be a risk to their health, wellbeing or safety if they do not receive a particular provision or intervention. The Secretary of State may make orders pursuant to the draft Coronavirus Bill (explained in more detail here) which will make the Governments’ proposals more clear. What if I don’t want to send my child to school, for example because they have a weakened immune system? If you feel it would be too high risk to send your child to school because they, or someone else in your family, is at particularly high risk, there is of course no requirement to send your child in. The guidance today is quite clear – if a vulnerable child can be at home, they should be. Under the draft Coronavirus Bill, the criminal penalty for parents failing to send their children is likely to be temporarily disapplied, so far as it relates to the direction for schools to close. If my child has an EHC plan, doesn’t the LA have a legal duty to deliver that provision? From a legal perspective this remains the case, and this is presumably why the Government has chosen to allow children with EHC plans to continue attending school. However, given the likely significant disruption to staffing, it may be very difficult for schools or LAs to deliver precisely the provision in the EHC plan, particularly over the next few weeks. The draft Coronavirus Bill proposes two key amendments to the law: The absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) may be temporarily amended to a ‘reasonable endeavours’ duty. This could be implemented via an order of the Secretary of State, which would have effect for one month (although further orders could be made if necessary). The order would need to set out why the Secretary of State considered this to be “appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus”. This means that during the specified period the LA needs to do whatever it reasonably can to put provision in place, but if they cannot do so they would not necessarily be breaching the law. The duty on schools to admit a child where the EHC plan names that school (section 43 of the Children and Families Act 2014) may be temporarily disapplied. Again, if there could be a risk to the child or young person’s health, wellbeing or safety if they do not receive a particular provision or intervention, raise this with your school and LA without delay. Will residential schools close? The education secretary, Gavin Williamson, stated that, “We recognise that many special schools and residential settings will need to continue to look after their pupils.” He said special schools with residential placements would hopefully remain open and the government would be looking at them individually to see how they can stay open and have the right type of staffing. Additionally, he indicated that the Government expects them to rely on supply teachers and for schools to stay open to support the children of key workers over the Easter holidays. He pledged to pay support staff who are only paid in term-time, if they show up during the Easter break. We are aware that parents of children or young people in residential settings are likely to face unique challenges if their child needs to return home. Raise your concerns with the school and your LA (and local NHS body, if relevant), as soon as possible to try to work out the best solution. The government has issued further guidance on isolation within residential settings which can be accessed here. 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 attends a Pupil Referral Unit or Alternative Provision, this setting may remain open to provide support for children in the ‘vulnerable’ category and/or children of key workers. If your child was not receiving any education, it is likely to be very difficult to enforce the LA’s duty to provide education while schools in general remain closed, simply because almost all children are now in the same situation. How long are schools likely be closed? At this stage no-one is able to say exactly how long schools will stay closed, though it seems clear it’s more likely to be a matter of months rather than weeks, depending on how the pandemic progresses. Mr Williamson told MPs he would be “guided by scientific and medical advice” on reopening. In practice they could remain closed until the start of the next school year in September. What about home to school transport? Mr Williamson indicated that school transport will hopefully continue, although there were “other strains within the transport network”. If your child remains entitled to go to school but school transport has been stopped due to staff absences, speak to your school and LA about what temporary solutions may be able to be put in place. Do the LA still need to carry out EHC needs assessments? The Minister’s open letter suggests that the government will be seeking to amend regulations on the timescales for EHC plan processes where this is appropriate because of COVID-19. As yet, IPSEA have not seen any proposed drafting and we will keep this under review. On a practical basis even if there is no change in the legislation, LA’s ability to comply with deadlines may be hampered by staff absence. Will SEND Tribunal appeals continue? Yes – please see our update of, 24 March 2020 A barrister from Landmark Chambers has written a blog about his experiences of a video hearing this week. The SEND Tribunal has confirmed that hearings will be on paper or by telephone (and, where the technology permits, by video) starting on Monday 23 March 2020. The Tribunal have 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. 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. You can find further guidance on how telephone and video hearings will be used during the COVID-19 outbreak via the link to our website above and here. Will annual reviews still need to be carried out? Under the draft Coronavirus Bill, the requirement to carry out annual reviews may also be temporarily disapplied where this is considered to be “appropriate and proportionate”. Note also the minister’s comments about regulations dealing with EHC plan processes during the COVID -19 outbreak. 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 LA about this to see what review mechanisms could be put in place.