Last updated 10.09.2021 16:30

There remains a body of guidance for 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 attendance and SEND provision

Is school attendance now compulsory? 

Yes – the Department for Education states that its aim is to maintain face to face education with minimal disruption and has issued guidance to settings to achieve this.

The expectation is that there will only be measures affecting normal, face-to-face education:

  • if there is a COVID -19 outbreak in a setting;
  • to respond to a Variant of Concern or an extremely high prevalence of COVID-19 in the community; or,
  • to prevent unsustainable pressure on NHS. 

The guidance sets out suggested thresholds at which point settings might want to seek public health advice. This varies depending on the type of setting:

Special schools, residential settings, and settings that operate with 20 or fewer children, pupils, students and staff at any one time:

2 children, pupils, students and staff, who are likely to have mixed closely, test positive for COVID-19 within a 10-day period

All other settings (except Higher Education):

5 children, pupils, students or staff, who are likely to have mixed closely, test positive for COVID-19 within a 10-day period; or 

10% of children, pupils, students or staff who are likely to have mixed closely test positive for COVID-19 within a 10-day period

NB Higher Education providers will liaise with their local public health bodies to identify measures and when to put into place.

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 unable to attend because of following government guidance or law relating to COVID-19 (for example if they need to self-isolate, or if they have tested positive but are well enough to learn from home)

The self-isolation guidance was revised in August.

School attendance is 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?

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. 

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 revised guidance makes clear that the health and education provision in an EHC plan must be secured. Specialists, health professionals and others who support children and young people with SEND (e.g. speech and language therapists) should provide the interventions required as usual.

What about residential and boarding schools? 

From 8 March, all pupils have been permitted to return to boarding and residential schools and colleges. Any pupils returning to school from abroad must follow the applicable travel legislation.

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 DfE contingency guidance is clear that restrictions on attendance will only be made where Directors of Public Health, local authorities and PHE health protection teams judge that restrictions (including in which settings and the nature of the restrictions) have to be made. The guidance sets out particular considerations for different settings and year groups which these officials will need to consider in their decision making. The important point is that schools themselves can’t make the decision to limit attendance.

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Children who are shielding or self-isolating 

What about those who were shielding? 

Shielding advice in England has been paused. 

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.

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

Schools are expected to retain remote education for those who need to self-isolate because they have tested positive (or are self-isolating following government guidance) to work or learn from home if they are well enough to do so. In addition, this should be available to pupils who are abroad and facing challenges to return because of COVID-19 travel restrictions. 

There is guidance available for schools about their duties.

“[…] the remote education provided should be equivalent in length to the core teaching pupils would receive in school”

This was previously described as:

  • 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 

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. 

The guidance on who must self-isolate changed in August – therefore, there may be a smaller pool of pupils for whom remote education must be provided. Obviously, if there are local or setting based closures following public health advice, then remote education will be made available.

The expectation is that where attendance restrictions are in place, the previous categories of “vulnerable” pupils will be prioritised for continued face to face attendance (unless contrary to local public health advice).

Reasonable adjustments are to be made to ensure pupils with SEND can access good quality, remote education.

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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 were cancelled. 

GCSEs, AS and A level exams have been cancelled and grades awarded based on teacher assessment.

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. 

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

Consultations as to what approach to take with A levels, GCSEs and another relating to Vocational and Technical Qualifications (VTQs) for the upcoming academic year concluded on 1 August 2021. It is anticipated that there will be changes to A-levels and GCSEs in Summer 2022 but at this point it is not known what these changes will be or what provision might be made for those students with SEND.

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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. 

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. 

However, this is not available to sixth form colleges and other institutions within the FE sector.

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. 

In June, the government stated that it would give providers of 16–19 education the option to offer students in year 13 (or equivalent) the opportunity to repeat up to one more year if they have been severely affected by the pandemic. This applied to all 16–19 providers and there was a mechanism by which providers could seek funding to facilitate this. In addition, if a provider was seeking this for more than 5% of the eligible cohort, it could seek prior authority from the ESFA.

For students with an EHC plan, the option to repeat a year should have been or 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 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. 

It is not yet clear how this will interact with the ability for 16-19 providers to offer a repeat year for those in Year 13 (or equivalent) but obviously the intention is to support this where a student has been particularly badly affected by the pandemic.

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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). 

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. 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 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)”. 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.  

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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 revised guidance recommends four control measures: 

  • Ensure good hygiene for everyone.
  • Maintain appropriate cleaning regimes.
  • Keep occupied spaces well ventilated.
  • Follow public health advice on testing, self-isolation and managing confirmed cases of COVID-19. 

There is also an expectation that schools will plan to be prepared to step measures up and down depending on local public health advice and have outbreak management measures ready. These would be deployed on the advice of local health officials.

The use of consistent groups (“bubbles”) is no longer recommended.

Tracing close contacts and advising on isolation is now the responsibility of NHS Test and Trace. Parents will still need to contact the setting to inform them if a child or young person is not able to attend because they have tested positive for COVID-19 or have been asked to self-isolate. 

From 16 August 2021, children under the age of 18 years 6 months are not required to self-isolate if they are contacted by NHS Test and Trace as a close contact of a positive COVID-19 case. Instead, they will be informed they have been in close contact with a positive case and advised to take a PCR test.

The revised guidance for settings states that it does not expect PPE to be required except what would normally be needed in their work. There may be a requirement for additional PPE where, for example,  aerosol generating procedures are being performed.

There is more detailed guidance on PPE available for settings and childcare providers.

What about face coverings? 

Face coverings are no longer required for pupils or staff in any situation. 

However, they are recommended when in enclosed and crowded spaces where pupils or staff may come into contact with people they don’t normally meet such as public transport and dedicated transport to school or college. This position may change in different areas depending on local public health or government advice (and IPSEA is aware that Plymouth, Devon, Torbay, Cornwall and Isles of Scilly are currently subject to recommendations that face coverings are worn in communal areas).

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Mass asymptomatic testing and SEND  

All secondary school pupils should receive 2 on-site lateral flow device tests, 3 to 5 days apart, on their return in the autumn term.

Settings can begin testing from 3 working days before the start of term and can stagger return of pupils across the first week to manage this. Pupils should then continue to test twice weekly at home until the end of September, when this will be reviewed. Your child’s setting should have contacted you before the end of term to explain what the process will be.

Thereafter, twice-weekly home testing will be available to staff and students.

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. 

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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. 

There continues to be a recommendation that face coverings be worn on school (and public) transport but this is not mandatory.

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. 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.

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 was updated to reflect further regulations which came into force on 26 September 2020 allowing some temporary changes to be reapplied if COVID-19 related restrictions were imposed by government and it was not reasonably practicable for providers to comply with EYFS. These regulations expired 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 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.  

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Further information 

Where can I find more information? 

General advice on COVID-19 and education can be found on the government website.

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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