Last updated 06.05.2022 11:30

Please note this page is reviewed quarterly. Please check the latest government guidance for any updates since. 

The government has now withdrawn all domestic restrictions relating to COVID-19. The guidance for schools was withdrawn on 1 April 2022. 

We have retained some information for parents and carers below.

The topics below cover:

School attendance and SEND provision

Is school attendance now compulsory? 

Children are now expected to be back at school and attending regularly. Action may be taken against you for unauthorised absences if your child is of compulsory school age. However, IPSEA receives a number of queries from parents and carers about authorising absence from school where a child or a close family member was previously designated as clinically extremely vulnerable.

Although there can’t be any blanket policy (either school’s or the local authority’s) about when an absence may be authorised and each request would need to be considered on its own merits and all the circumstances considered (which may include the severity of any health conditions and advice from professionals, what the impact of contracting COVID-19 would have on those with these health conditions etc), schools are being encouraged to promote attendance and the impact on the absent child’s education may mean that securing authorisation is difficult. Parents and carers should take advice.

What about SEND provision?

Educational setting’s statutory duties for children and young people with SEND remain the same as they were prior to COVID-19. 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 the section on EHC needs assessments and EHC plans if your child or the 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 following lockdowns). Duties under the Equality Act apply to all settings, including independent ones. 

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

Back to top 

Children who are shielding or self-isolating 

What about those who were shielding? 

Shielding advice in England has been withdrawn. 

However, where pupils have been advised by their doctor not to attend because of their health condition, then the usual school and local authority duties relating to the education of pupils who are unable to attend will still apply.

The setting or local authority may ask to see a copy of the advice sent to you. They should continue to follow advice about not encouraging parents to request unnecessary medical evidence as set out in the general school attendance guidance.

If you have concerns about whether a child or young person should be learning in person or remotely, for reasons relating to their or a family member’s clinically extreme vulnerability, you should discuss this as soon as possible with the medical professionals involved and the setting.

Back to top 

Continued home education 

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 unable to attend because of anxiety or similar difficulties. Details of how to get temporary education put in place may be found here. 

See also our advice above in relation to children who are shielding or self-isolating.

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

  • For children with EHC plans who are receiving EOTAS, it is possible for 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 that part of the provision to be made in a school or post-16 institution. 
  • 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. 

Back to top 

Assessments and exams 

GCSEs, A-Levels and Vocational, Technical and other qualifications will continue as normal in the 2022 exam period. There is guidance for settings on the contingency arrangements they are expected to make.

In addition, in recognition of the disruption to education of those taking exams last year, there are some adjustments to the exams, e.g. not being required to cover the usual range of content and advance information of subjects to revise. The adjustments for each qualification will depend on exam board and subject so parents and carers are advised to speak to the tutors/teachers at their child or young person’s setting to find out further information. You can access a variety of resources about the 2022 exam arrangements here.

Back to top 

Additional catch-up provision due to missed education 

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

This is going to be something to discuss with the school. We expect most settings will have reviewed 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. 

There is information available from the Department for Education on catch-up funding for all sectors.

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: 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. It was confirmed in March 2022 that this programme will continue for the 2022-2023 academic year, with changes to the way in which funding is accessed.

For children/young people with SEND – 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 SEND requires such SEP, then the law says this must be provided. 

Remember that considerations for children and young people with SEND include whether they may need more time to complete their studies.  Many children and young people with SEND (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. 

For students with an EHC plan, the option to repeat a year could be considered as part of the local authority’s annual review of the EHC plan.

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

Where a LA 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 via the Education and Skills Funding Agency. Approval must be given by the Secretary of State to allow a young person aged 19 or over to remain at a school.

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 LAs may want to consider whether such application is necessary in light of the COVID-19 crisis and individual student’s circumstances. 

Back to top

EHC needs assessments and EHC plans

If my child has an EHC plan, does the LA still have a legal duty to deliver that provision? 

In 2020, 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. 

Since 31 July 2020, however, the duties under s.42 and s.43 Children and Families Act 2014 have come back into full force. 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 must admit the child/young person (this applies to all settings except wholly independent schools). 

However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the Local Government and Social Care Ombudsman (“LGSCO”) may be able to investigate – please see the section below on making a complaint or challenging a decision. 

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

The government never suspended the duty to consider requests for assessment or to conduct them. 

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. 

There were relaxations to the deadlines which apply on LAs when considering EHC needs assessment requests, but these only applied from 1 May 2020 to 24 September 2020. The changes donotapplyto deadlines that fell before 1 May 2021 or after 25 September 2020.

The expectation of the government was that any case that was in progress after that date to which the coronavirus exception had previously been applied became 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) from 25 September 2020. The clear expectation was that LAs would make sure that decisions were made promptly in these circumstances. 

Will annual reviews still need to be carried out? 

As above, the usual deadlines were temporarily relaxed but only until 25 September 2020, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”. 

Now, 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. 

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.  

Back to top

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)? 

The normal deadlines continue to apply. Changes which allowed parents longer to request an independent review panel (IRP) expired on 24 September 2021: Applications for IRPs in relation to permanent exclusions occurring from 25 September 2021 must be made within 15 school days from the date on which notice of the governing board’s decision to uphold an exclusion is given in writing to parents, or directly to the pupil if they are 18 or above.  

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. 

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. 

It may be relevant to consider whether an exclusion is lawful, reasonable, proportionate and fair bearing in mind circumstances arising as a result of the pandemic and changes to the way education has been or is being delivered.  These might include the effect of considerable change on the child or young person (bearing in mind their individual needs), whether the setting has been securing the SEP that it ought to or whether this has been unavailable or not provided and whether the setting has properly considered what additional support or adjustments might be made to prevent or minimise the behaviour before resorting to exclusion.

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. 

There are useful resources also available here.

Back to top 

School/college placement in September 

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

The government 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 2021 have been relaxed as a result of The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These regulations were extended in 2021 and now apply until 30 September 2022. They 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 2022, but the 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. 

Back to top 

COVID-19 Testing

Most of the COVID-19 related guidance was withdrawn on 1 April 2022. Updated guidance explains that regular asymptomatic testing is no longer recommended in any education or childcare setting, including in SEND, alternative provision and children’s social care settings. However, residential SEND settings may be advised by their local health protection team to re-introduce some time-limited asymptomatic testing in the event of a possible outbreak.

Back to top 

Home to school transport 

The legal duties around entitlement to school transport did not change as a result of COVID-19. 

Back to top 

Social care provision 

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

Social care services for children and young people should continue. 

In relation to adult social care, there are no changes to LA’s duties in force.  The system of easements to the Care Act 2014, which previously had the potential to reduce LA’s duties if they ‘opted-in’ ended on 16 July 2021.

OFSTED began visits to LAs and children’s social care providers in September 2021, to look at the experiences of children and how LAs and providers have made the best possible decisions for children in the context of the pandemic. 

Back to top 

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 LA. Our model letter 6 may help you do this. If you do not receive a satisfactory response, you may wish to escalate your complaint to the Local Government and Social Care Ombudsman (“LGSCO”) – see below for more information. 

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. 

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

How can I escalate a complaint about an LA to the LGSCO? 

You can submit a complaint to the LGSCO via their websiteIf your complaint involves COVID-19, please see the LGSCO factsheet on how they will investigate it. This includes the following helpful statement: 

“We will expect councils and care providers to have acted within law and guidance unless there were clear, compelling, and relevant reasons to do something else. We will expect appropriate record keeping, delegation, decision making, and other principles of good administrative practice, appropriate for operation during a crisis.” 

For urgent issues, you should contact your LA or care provider.  

Back to top 

Vaccinations

There is a COVID -19 vaccination programme for children aged 5 to 17.

There is a guide for children aged 5 – 15.

There is also a guide for those aged 16 – 17.

Further guidance from the Department for Education on vaccinations for clinically vulnerable children and young people can be found here.

Contact has also produced a useful FAQs about COVID-19 vaccinations.

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.

R