Last updated 14.05.2021 12:15

As a result of the COVID-19 pandemic, there are some changes to the obligations on local authorities (“LAs”), schools and other settings which may affect children and young people with special educational needs and disabilities (“SEND”) 

Please click on the relevant headings below for our summaries of the current government advice. We are periodically updating this page as more information is released by the Department for Education (“DfE”) or other government bodies. 

You can find government guidance for parents and carers here. 

The topics below cover:

School re-opening and SEND provision

Is school attendance now compulsory? 

Education settings have now reopened and are subject to new guidance on how to manage risk and reduce transmission of COVID-19

There is additional separate guidance for special settings and for further education (FE) settings.

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

The guidance for parents explains that all pupils should now be attending school unless they are;

  • self-isolating because they:
    • have symptoms or have had a positive test result
    • live with someone who has symptoms or has tested positive and are a household contact
    • are a close contact of someone who has coronavirus (COVID-19)
  • they are one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.

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

What about SEND provision?

As above, 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 for re-opening in the Autumn 2020). Duties under the Equality Act apply to all settings, including independent ones. 

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

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

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

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

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

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

What about residential and boarding schools? 

From 8 March, all pupils can return to boarding and residential schools and colleges. 

The updated guidance for special settings states: 

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

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

What if there’s a local outbreak? 

The government’s message is that any restrictions on education are a last resort. The DfEcontingency guidance is in place which states: 

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

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

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Children who are shielding or self-isolating 

What about those who were shielding? 

From 31 March 2021 shielding advice in England has been paused. Therefore, most pupils who were classified as clinically extremely vulnerable (CEV) are expected to be able to attend school now. However, as we set out above, where pupils have been advised by their doctor not to attend because of their health condition, remote learning should continue to be provided.

The  setting may check that they are advised not to attend school or college by asking to see a copy of the advice sent to you. Settings should continue to follow advice about not encouraging parents to request unnecessary medical evidence as set out in the general school attendance guidance.

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

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

If my child cannot attend school, are they still entitled to remote education? 

The DfE has issued a “direction” that most schools must provide remote education when children travelling to or attending them would be against Public Health England or Secretary of State guidance or the law relating to COVID-19. 

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

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

The guidance states: 

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

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

(The guidance only applies up to the end of compulsory school age, which is the end of Key Stage 4.) 

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

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

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

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

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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 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, 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. 

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Assessments and exams 

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

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

Grades must be submitted by 18 June 2021.

There is separate guidance for Vocational, Technical and other qualifications. Exams and assessments for vocational and technical qualifications that require students to demonstrate professional or occupational competence have continued. However, some students may not have been able to take their exams. It is expected that arrangements will be put in place to make sure they are not disadvantaged.

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

A guide for students taking A levels, GCSEs and some other qualifications has been published in May 2021. 

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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 to review their students following their return to school to try to identify gaps in learning and barriers to learning arising from their prolonged periods of absence. 

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

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

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

Recovery premium” funding for schools has recently been announced. 

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

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

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

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

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

For children/young people with 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. 

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 under the established Education and Skills Funding Agency process. 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. 

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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? 

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

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). 

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

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

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

However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the 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? 

IPSEA is aware of a number of LAs who 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 conduct them. The guidance on EHC needs assessments and plans during the COVID-19 crisis made clear that requests for assessment were to continue to be considered. 

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

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

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

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 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)”. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this. 

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. It suggests that it may be appropriate to use electronic means to circulate information or to hold virtual meetings as long as parents/carers, children and young people are still able to participate in the process in a meaningful way. 

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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 except for the deadline for applications for an independent review. The parent now has 25 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. (Previously parents had only 15 days.) 

Schools must wait for the extended period of 25 school days to pass without an application having been made before deleting the name of an expelled pupil from their admissions register. There is more detail set out in this statutory guidance. 

These changes apply until 24 September 2021. 

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

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

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

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

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

You can find more information about exclusions here. 

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School/college placement in September 

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

The government has issued guidance to assist those involved in admissions appeals. From 24 April 2020, some of the requirements set out in the School Admissions Appeal Code 2012 have been relaxed as a result of the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These changes will be in force until 30 September 2021. 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, 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. 

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Reducing transmission and use of face coverings 

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

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

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

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

The guidance on safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE) sets out the strategy for infection prevention and control, including the specific circumstances in which PPE should be used. (This refers to medical-grade PPE; for more information on face coverings see below.) Additional PPE is only required where: 

  • the child or young person has intimate care needs which involve the use of PPE; 
  • aerosol generating procedures are being performed; or
  • the child or young person is displaying symptoms of coronavirus and a distance of 2 metres cannot be maintained. 

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

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

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

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

What about face coverings? 

Pupils are no longer required to wear face coverings in school. 

The government continues to recommend that face coverings should be worn by staff and visitors in situations outside of classrooms where social distancing is not possible (for example, when moving around in corridors and communal areas). 

The guidance on face coverings in educationprovides more information.

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Mass asymptomatic testing and SEND 

The “rapid testing programme” began with on-site testing at schools, but pupils are now recommended to do a home test themselves at home twice a week. Small on-site testing facilities can remain at schools for those who are unable to home test.

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

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

For some children and young people with SEND adjustments will be required. 

For more information, see the guidance on asymptomatic testing in mainstream and specialist settings. 

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Home to school transport 

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

The DfE has issued guidance setting out its expectations for planning for transport after schools and colleges reopen, in order to manage reduced capacity due to social distancing requirements. As all plans are to be developed locally, the best place to start in understanding the plans in your area is by using the LA’s Local Offer to find out more information. 

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

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

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

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

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

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

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

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

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Social care provision 

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

The DfE has issued guidance relating to children’s social care. This confirms that social care services for disabled children and young people should continue and includes examples of this working effectively during the pandemic. It has also added some information for children’s social care teams to its guidance for educational settings (see question 1 above). If you receive direct payments and are unable to secure the provision they were agreed for as a result of COVID-19, you should contact your LA to agree alternative arrangements. 

In relation to adult social care, there are currently no changes to LA’s duties in force. While thegovernment has designed a system of easements to the Care Act 2014which have the potential to reduce LA’s duties, these are ‘opt-in’ and at present no LAs have chosen to take advantage of these changes. (The Care Quality Commission website will list anyLAs using easements should they choose to do so.) 

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

OFSTED began visits to LAs and children’s social care providers in September, 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. 

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Early years provision 

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

There were temporary changes introducing flexibility into the requirements of the early years foundation stage (“EYFS”) from 24 April which ended on 25 September 2020. 

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

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

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Making a complaint or challenging a decision 

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

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

If your complaint is about the provision in a child or young person’s EHC plan not being made, you should complain to the 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. 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. 

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.  

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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 DfE 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: 

  • advice to help adults with caring responsibilities look after the mental health and wellbeing of children or young people, including those with additional needs and disabilities, during the COVID-19 outbreak. This guidance includes contact details for a number of organisations offering advice and information. 
  • a list of education resources for home education during the COVID-19 pandemic. This includes links to SEND and disability and mental wellbeing-specific resources. 
  • case studies to share examples of remote education practice for schools during coronavirus following consultation with schools and academies across England. One of them focuses on supporting the wellbeing of primary pupils with SEND. 
  • A well being resource can also be found here. 

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.

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