Information accurate as of 03.04.2020 11.54am

We’ve updated our list of FAQs on how the COVID-19 measures will affect children and young people with special educational needs (“SEN”).

  1. 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’.

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. There is further guidance available about who is a vulnerable child which can be found here.

The Government has 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.

    On 24 March 2020, the Secretary of State for Children, Vicky Ford, wrote 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. On 31st March the Government updated the Guidance for schools about temporarily closing to include a reference to ‘hubs’. The guidance states:

    “With significantly reduced pupil numbers, and risks of understaffing due to illness, we understand that shared provision through multi-school or early years hubs and clusters is an option being considered in some areas. In some cases, arrangements are already in place

    There are issues to balance when making choices about provision at this time. First and foremost is public health, which remains the priority. Any arrangements should enable staff and children to follow social distancing guidance and limit other risks relating to the spread of the virus. We recognise that this is a particular challenge in some settings.

    Alongside this, issues such as safeguarding and consistency of provision for pupils with SEND should also be considered. Additionally, in the current circumstances there will be practicalities to consider, including how children and teachers access settings while limiting travel.

    We want to ensure the system is sustainable, and are working through these points with schools, early years settings, local authorities, trusts and other stakeholders, via the Department for Education (DfE)’s central and regional teams.

    Our intention is to publish further guidance after Easter.”

    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.

    1. 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 is quite clear – if a vulnerable child can be at home, they should be.

    Under the Coronavirus Sct 2020, the criminal penalty for parents failing to send their children will be temporarily disapplied, so far as it relates to the direction for schools to close.

    (N.B. At the time of writing, the Secretary or State has not yet officially made the order under the Coronavirus Act ordering schools to close and thereby disapplying the criminal penalty, but we anticipate this will happen very soon.)

    1. 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 Coronavirus Act contains 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) can be temporarily amended to a ‘reasonable endeavours’ duty.  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. Exactly what ‘reasonable endeavours’ will amount to in this context is as yet unclear as it has not been defined in the recent legislation and no guidance has been issued to local authorities. Here is an article about the possible approaches to the ‘reasonable endeavours’ duty from a legal perspective.
    • The duty on schools to admit a child where the EHC plan names that school (section 43 of the Children and Families Act 2014) can be temporarily disapplied.

    These changes will apply if and when the Secretary of State makes an order to this effect. The order will have effect for one month (although further orders can be made if necessary). The order will need to set out why the Secretary of State considers it to be “appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus”.

    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.

    In law, you can request a personal budget and seek direct payments for special educational provision during the EHC needs assessment process or during an annual review.  However, using reasonable endeavours to secure the special educational provision in a plan may require creative thinking and this is certainly something that could be discussed with a LA.

    1. 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.

    1. 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. The government guidance on vulnerable children states:

    AP providers are well-placed to cater for the needs of the children we are defining as vulnerable in a way that would be difficult to replicate elsewhere. The AP sector therefore has a key role to play in helping safeguard this group of children at this difficult time.

    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.

    1. 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.

    1. 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.

    1. Do the LA still need to carry out EHC needs assessments?

    Although 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, no order has been passed to this effect. 

    IPSEA is aware of a number of LAs who have indicated that they will not be carrying out any EHC needs assessments.  Legally, this is not an option nor has the government indicated any intention to suspend the duty to consider requests for assessment or to carry out the same. 

    On a practical basis, a LA’s ability to comply with deadlines may be hampered by staff absence and the way EHC needs assessments are conducted may be affected by the availability of staff and restrictions on face to face contact and working from home.  However, LAs have wide powers in the way they obtain information and advice, conduct meetings and fulfil their statutory duties and undoubtedly this is why only a relaxation of the statutory deadlines has been suggested by the government.

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

    1. Will SEND Tribunal appeals continue?

    Yes – please see our update of, 3 April 2020.

    A barrister from Landmark Chambers has written a blog about his experiences of a video hearing.

    The SEND Tribunal has confirmed that hearings will be on paper or by telephone (and, where the technology permits, by video) from 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.

    The Tribunal has published guidance on how telephone and video hearings will be used during the COVID-19 outbreak.

    1. Will annual reviews still need to be carried out?

    Under the Coronavirus Act, the requirement to carry out annual reviews can also be temporarily disapplied where this is considered to be “appropriate and proportionate”. (As above, the order bringing this into effect has not yet been made but we expect it to happen imminently.)

    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.

      11. What are the main implications of the Coronavirus Act 2020 on social care   provision under the Care Act 2014?

    On the 31st March a joint statement was released from the Minister for Disabled People, Health and Work, the Minister of Care, and the Parliamentary Under Secretary of State for Children and Families. The full text is here . Importantly, the statement reinforces that:

    ‘The provisions in the [Coronavirus] Act are time-limited, to come into force when absolutely necessary and to be terminated as soon as circumstances allow. We will ensure that once the crisis is over, the Care Act will again apply. We expect local authorities to do everything they can to maintain existing services and to meet the needs of as many as possible, particularly for those with the most acute needs.’

    Subsequent government guidance sets out 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.  This framework has been set out by the government here.

    The easements took legal effect on 31 March 2020 and 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 4 of the guidance covers protections and safeguards as well as listing other important duties that remain in place including those under the Equality Act 2010.

    Section 3 of this guidance sets out what the powers actually change:

    ‘The changes fall into four key categories, each applicable for the period the powers are in force:

    1. Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. However, they will still be expected to respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided. Annex B of the guidance provides more information
    2. Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. They will, however, have powers to charge people retrospectively for the care and support they receive during this period, subject to giving reasonable information in advance about this, and a later financial assessment. This will ensure fairness between people already receiving care and support before this period, and people entering the care and support system during this period. Annex B of the guidance provides more information
    3. Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. They will however still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision. Annex B of the guidance provides more information
    4. The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs. Local Authorities will still be expected to take all reasonable steps to continue to meet needs as now. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs, for example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision. Annex C provides further guidance about the principles and approaches which should underpin this’

    It is important to note that this does not affect the system for social care for children except in relation to transition to adult social services (there is potential for the “cliff edge” between child and adult social care services to reappear if LAs exercise their powers under these easements without due care and consideration).  It is also important to note that whenever a LA decides to take advantage of an easement under the Coronavirus Act 2020, they will need to document their decision making to show how they have come to this decision and why, taking account of the guidance, the ethical framework and the individual circumstances of the person affected.

    Further useful information

    The Council for Disabled Children (CDC) has launched two new email inboxes aimed to answer questions, collate resources and share information on Coronavirus and the impact on children and young people with Special Educational Needs and Disabilities (SEND). They are designed to be used by professionals, practitioners, parent carers and families of children and young people with SEND.

    The new ‘CDC questions’ inbox, [email protected], provides the opportunity to ask questions about how coronavirus will impact on children and young people with SEND as well as other questions relating to the impact on families; the education, health, social care sectors; and the voluntary and community sector. 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 designed to enable parent 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, which you can find here. The webpage is kept under continuous review.

    You can ask your questions by emailing: [email protected]

    You can send resources to: [email protected]