Last updated 28.09.2020 16:32

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

We hope the information here helps to set out schools and local authorities legal duties in relation to children and young people with SEND following their return to school.  It also contains links to the relevant guidance or other resources.  We will keep the page updated with any changes that happen.

The government reissued its guidance for parents and carers and updated its main guidance for the full re-opening of schools in September.  It’s important to note that this is not statutory guidance – but although there’s no duty to have regard to it, we expect all schools, colleges and other places of education will have used this to plan re-opening and how education will be delivered in the Autumn 2020 term.

The topics below cover:

School re-opening and SEND provision

Schools/colleges should now be fully open and all pupils should be in school full-time. It is no longer possible for a school to refuse to admit a pupil as a result of a risk assessment. The only legal basis on which a school may prevent a child attending is a formal exclusion. A child can only be excluded for disciplinary reasons. See below for rules for schools if there is a local lockdown. In relation to SEND provision it’s important to note that, whilst schools/colleges have had to make changes to the way 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.  This means using best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made.   The must have regard to the SEN and Disability Code of Practice 2015.

Settings should have notified all parents of their individual re-opening plans (although these may be subject to ongoing changes, as government guidance changes).  If you have questions about how SEN Support will be delivered this term, ask to speak with the SENCO or staff member responsible for this.

A school’s duties under the Equality Act 2010 still apply – including when amending and applying a behaviour policy (some of which will have been amended for re-opening).

Minister Ford has also made clear that specialist and visiting practitioners should provide support for pupils with SEND (including interventions) “as usual” (including moving between schools).

What about those who were shielding?

The guidance confirms that:

 ‘School and college attendance will again be mandatory from the beginning of the new academic year. For parents and carers of children of compulsory school age, this means that the legal duty on you as a parent to send your child to school regularly will apply.’

Parents’ duties under s.7 Education Act 1996 apply and this means that if your child is on the roll of a school, regular attendance is expected.

Guidance on school reopening states:

Since shielding advice has paused nationally, except in a very few areas where the implementation of local restrictions is ongoing, all previously affected children should be able to return to school except where individual clinical advice not to do so has been provided.

Where a pupil is unable to attend school because they are complying with clinical or public health advice, we expect schools to be able to immediately offer them access to remote education. Schools should monitor engagement with this activity as set out in the action for all schools and local authorities section.

Where children are not able to attend school as parents and carers are following clinical or public health advice, for example, self-isolation or family isolation, the absence will not be penalised.

However, it’s really important that parents do not make these decisions without support from their doctors – because the expectation is that even clinically extremely vulnerable children will be back at school.

The government revised its shielding guidance in August.  It states that: “The latest evidence indicates that the risk of serious illness for most children and young people is low. In the future, we expect fewer children and young people will be included on the shielded patient list”.  The expectation is that doctors will have discussed whether or not a child or young person should remain on the shielded list over the summer.

If you are concerned about your child attending school because of their or a member of their household’s health, we advise you to speak with your doctor and the setting to discuss whether or not it is clinically advisable for your child or young person to attend.  If the clinical opinion is that they should not, we suggest you share written confirmation from your doctor with the setting and request that they authorise the absence and provide home-learning until attendance can begin again.

If there is a local lockdown (which you will be able to check through your local authority’s website and through the government website) then clinically extremely vulnerable people may be advised to shield.   If this does happen, then a child or young person is on the shielded list should receive education at home through the school or college’s programme.  However, please note that not all local lockdowns require this – so you should check with the specific rules in your area.

Remember that, post 16, parents, carers and young people cannot be prosecuted for non-attendance 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.

You can find information about when a setting should authorise absence as ‘not attending in circumstances related to coronavirus’ under new regulations here.

Where a child or young person has an EHC plan, schools/colleges will not be under an obligation to secure the provision in the plan at home if the child or young person is not attending without authorisation (e.g. because their clinician says they cannot attend).

What are the rules for schools in a local lockdown area?

Guidance about local decision making for managing COVID-19 outbreaks (“CONTAIN”) was issued over the August bank holiday weekend and it may be that some schools are still evaluating how to implement this.  Therefore, for the individual arrangements in your child or young person’s setting, we recommend speaking with the setting.

In relation to individual children, classes or bubbles and schools which are required to isolate or shut down, the re-opening guidance made clear that schools should have contingency plans.  It’s now clear that this contingency planning will need to take account of the system set out in CONTAIN. 

Annex 3 of CONTAIN sets out tiers of restrictions for education and childcare. 

The expectation is that even where there are local restrictions, education and childcare will usually remain fully open to all (Tier 1).  However, where restrictions are required (and this will come from national direction) then implementation will be based on this system of tiers, with some flexibility on how attendance is restricted depending on the specific context.

Tier

Childcare and nurseries

Mainstream primary

Mainstream secondary

FE (FE colleges and sixth form colleges)

AP

Special

1

Open to all

Open to all

Open to all

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

2

Open to all

Open to all

Full time attendance allowed for children of key workers and vulnerable children

Rota system combined with remote education for others

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Discretion on how to limit number of pupils onsite.

Suggested approach:

Full time attendance allowed for children of key workers and vulnerable children

Rota system combined with remote education for others)

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

3

Open to all

Open to all

Full time attendance allowed ONLY for children of key workers, vulnerable children and children of selected year groups

Remote education for others

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Full time attendance allowed ONLY for children of key workers, vulnerable children and children of selected year groups

Remote education for others Face coverings required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

4

Full time attendance allowed ONLY for children of key workers and vulnerable children

Remote education for others

 

Full time attendance allowed ONLY for children of key workers and vulnerable children

Remote education for others

 

Full time attendance allowed ONLY for children of key workers and vulnerable children

Remote education for others

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Full time attendance allowed ONLY for children of key workers and vulnerable children

Remote education for others

Face coverings required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

Open to all

Face coverings for those Y7 and above required in all areas outside classroom where social distancing difficult to maintain

The guidance doesn’t expressly refer to private schools (special or otherwise) or non-maintained special schools and s.41 independent schools.  However, IPSEA interprets the guidance to include independent (including those registered under s.41) and non-maintained special schools in its use of “special school”.  The key thing is that special schools/institutions and Alternative Provision will remain open even in a Tier 4 lockdown.

Where pupils need to self-isolate, or there is a local lockdown requiring pupils to remain at home, the school will offer immediate, high-quality remote education and will have planned for what this will be.  Schools will need to offer paper materials where access to online learning is not available.

For pupils with SEND, the guidance states that schools should work with parents where the pupil can’t access learning without adult support to develop “a broad and ambitious curriculum”.  Therefore, schools might need to think of bespoke and creative ways to support children with SEND remotely.

The duty to secure the provision in the EHC plan under s.42 Children & Families Act 2014 continues under the tier system. 

There is information explaining how schools and local authorities can get support to procure IT and internet access for certain pupils.

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

This is going to be something to discuss with the setting.  It may be necessary for more detailed discussions to take place in the autumn term – most settings will be undertaking reviews of their students at the beginning of the autumn term 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, a one-off grant to all state-funded primary, secondary and special schools in the 20-21 academic year is being made available.

The government has 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)”

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) who should be in place by the October half term 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. 

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 amendments to an EHC plan which no longer meets need.

What about repeating a year?

In its most recent guidance, the government suggests that it “does not anticipate” that children and young people (including those with EHC plans) will need to repeat a year or that they will need to remain in education “for longer than originally set out in their EHC Plan”, although in “a small number of individual cases” an extension of their current provision or an individualised catch up programme of “a term or half term” may be necessary.

It is not clear on what evidence the government has made this determination.

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?

Having announced a change pf policy with regards to face coverings in school, the guidance can be found here.

In summary, this applies to pupils in Y7 or above.  In areas where a local lockdown is not in place, then schools may develop their own policy as to whether and when face coverings are required.  (The guidance uses the words “recommend” and “required” but it will be at the school’s discretion.) The guidance states that face coverings are not recommended within the classroom.    However, the guidance is clear that “No-one should be excluded from education on the grounds that they are not wearing a face covering”.

There are exemptions, in any event, 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 in relation to school and other places of education in Autumn 2020 and local authorities were written to in July by the Department for Education with its expectations for planning for transport for the re-opening of schools and colleges.  Local authorities were asked to establish what current and projected demand for transport will be and the Department for Education sent a Travel Demand Management toolkit to them on 31 July (unfortunately, most schools were shut at this point so it is not clear whether all local authorities  have been able to conduct a robust survey of demand).

The Department for Education has set out an expectation that 50% of journeys to school of 2 miles or less that currently take place by public bus will, instead, be undertaken by bike or on foot and asks that local authorities encourage staff and pupils to do so 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 local authorities 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 local authority’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 in deciding what is appropriate for autumn 2020, local authorities 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 new 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 as more children return?

The guidance on reopening 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 safe re-opening in line with the guidance but each setting will be implementing strategies based on their individual circumstances.  Most settings will have communicated their re-opening plans to parents, carers and pupils.  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.

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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Is it possible to ask for my child to continue receiving education at home now schools are 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.

EHC needs assessments and EHC plans

If my child has an EHC plan, doesn’t the LA have a legal duty to deliver that provision?

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 to31 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.

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 LA still need to carry out EHC needs assessments?

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 the government did not suspend the duty to consider requests for assessment or to carry out the same. 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. The current situation 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 is not reasonably practicable or it is 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 must instead complete that step as soon as it is 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. 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 cease to 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 LA about this to see what review mechanisms could be put in place.  You will find more information on our website, here.

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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.  It has also added some information for children’s social care teams to its guidance for educational settings (see question 1 above).

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 government has also produced guidance for people receiving direct payments.

OFSTED begun 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 LA has a continuing duty to provide education for all children of compulsory school age – you should write to your LA 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)?

New regulations, came into effect on 1 June, allowing schools greater flexibility when considering exclusions during the coronavirus outbreak. The changes are explained in this statutory guidance, which has been updated at the end of August to reflect what happens when the new regulations cease to have effect. 

The regulations apply to maintained schools, academies (including alternative provision academies, but not 16-19 academies) and pupil referral units. 

If it's not reasonably practicable for a governing board to meet in person within the usual exclusions timescales, they can meet via telephone or video conference as long as, everyone agrees to this, can participate fully and the meeting will be fair and transparent (if it becomes clear after the meeting starts that it can't proceed fairly, the chair should adjourn the meeting). If the time limit for the governing board to meet to consider an exclusion has not already passed before 1 June, it can be extended as follows:

  • Permanent exclusions, and fixed-term exclusions resulting in pupils missing more than 15 school days in a term –if it's not been possible to meet in person or remotely, the time limit can be extended from 15 to 25 school days. This does NOT apply from 25 September 2020.
  • Fixed-term exclusions resulting in pupils missing between 6 and 15 school days in a term (and the parent make representations) – if it's not been possible to meet in person or remotely, the time limit can be extended from 50 to 60 school days. This does NOT apply from 25 September 2020.
  • If the time limit to meet has already passed before 1 June, the board needs to hold the meeting as soon as is practicable.

These regulations will expire on 25 September 2020 but will continue to apply to any exclusion occurring before that date. 

  • For exclusions covered under the temporary arrangements, 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. This relaxation continues until 24 March 2021.

Therefore, 1 June 2020 and 24 September 2020 (i.e. after the return to school) the original Amendment Regulations apply.

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?

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. 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 31 January 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 should have moved to a new phase of education in September, but the LA hasn’t issued the amended EHC plan.

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.

The Amendment Regulations, which temporarily relaxed certain deadlines do not apply where the deadline had already passed before 1 May 2020. As the new term has now begun and the injustice caused to children and young people without a school place at this time will be severe, you should write to the LA 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.

DfE guidance makes it clear that LAs “must already have completed this year’s required transfer reviews…There is no change to the statutory deadlines for these reviews. Where, exceptionally, completion has been delayed, these transfer reviews need to be finalised urgently.”

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?

Temporary changes introducing flexibility into the requirements of the early years foundation stage (“EYFS”) were in force from 24 April to 25 September 2020. During that time, early years settings only needed to use reasonable endeavours to deliver the learning and development requirements set out in the EYFS.  EYFS providers were able to change the staffing ratios (para 3.30 of the EYFS framework guidance. There was also be no requirement to assess(benchmark) reception aged children against the EYFS at the end of the last academic year and, consequently, no LA moderation of this. 

These changes ended on 25 September 2020, although a transitional period is in place from 26 September to 25 November during which the disapplications around staffing qualifications in ratios continue. No relaxation of the guidance about DBS checks has been made so no unchecked adult can look after children unsupervised.

Guidance has been updated to reflect new regulations which came into force on 26 September 2020 allowing some temporary changes to be reapplied up if COVID-19 related local lockdowns 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 the local lockdown area but 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.

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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. 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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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.