By Hayley Mason, Senior Solicitor at SEN Legal
Thursday 30th April saw a flurry of activity in the SEN world as the Government issued two key documents to temporarily change the landscape of SEN provision and timescales as we know it (and have known it since 2014) amid COVID-19. Many parents flocked to social media for a helpful digest of what the changes mean for them and how their child’s EHC Plan may be affected.
I must start off by saying that these changes have not come out of the blue. The Government have been hinting at them since they issued the vulnerable children guidance on 23rd March 2020, and the changes were therefore expected. However, there was no impact statement, and no time between the documents being issued to when they came into force, meaning that parents and professionals alike have had very little time to adjust.
This article deals with these two key changes as two separate parts ‘timescales’ and ‘duty to provide provision under s.42’ as they affect different groups - at a time of mass confusion about parental rights of disabled children, I want to be clear as to which parts of the changes may affect you.
It’s also really important to note that the changes come into force in different ways, are monitored in different ways, and are for different durations.
Timescales
The first document introduced on 30th April 2020 was the new ‘Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020’ (‘the amendment regs) and the Explanatory Memorandum to those Regulations. These come into force on 1st May 2020 and are currently set to last until 25th September 2020. If needed, this expiry date can be extended.
The new Regulations temporarily amend the regulations we are all familiar with - the ‘Special Educational Needs and Disability Regulations 2014’ (the regulations’) and clarify the answers to many of the questions I have received from social media, such as:
I have recently put an EHCN request in for my daughter. Can the local authority relax the timescales with regards to making decisions and carrying out the assessment?
My son is due to transfer to a post 19 placement in September 2020. With the new bill being proposed could the final EHCP now be delayed and no placement named?
Still awaiting paperwork after EHCP annual review. It took place in January. Where do we stand in such situations?
Prior to the release of the amendment Regulations, there was a lot of uncertainty about what should be done, and when. Despite COVID-19, Local Authorities remained under an absolute duty to meet the various deadlines required under regulations, the or face judicial review proceedings for failing to do so otherwise. The reality is, Local Authorities were never overly good at meeting these deadline pre COVID-19, and new demands on services and reduced staffing levels had only made things worse.
In relation to initial requests for EHC Needs Assessments, as it stood until 30th April 2020, parents and institutions were still able to request EHC Needs Assessments, and require the Local Authority to meet all of the deadlines in the EHC Plan process, up to the issuing of the final Plan at 20 weeks.
From 1st May, the processes themselves are unchanged, and parents and institutions can still submit EHC Needs Assessment requests as normal. Therefore, if your Local Authority is refusing to accept EHC Needs Assessment application which we know some LA’s are), then they are operating an unlawful policy. The only thing that has relaxed is, the timescale by which the Local Authority must provide various decisions.
The wording used in the amendment regulations is slightly different, dependant on the Regulation being amended. However, the effect is the same. That being that the Local Authority are able to depart from the timescales set out in the Regulations, if they need to do so for reasons relating to the COVID-19 pandemic.
Most of the Regulation deadlines are amended by Regulation 5 of the amendment regulations, which state;
“Where the coronavirus exception applies, any requirement in any of the regulations specified in paragraph (3) for action to be taken within a specified period of time or by a certain day is to be read instead as a requirement for such action to be taken as soon as reasonably practicable.”
In respect of the deadlines not included on that list, including the deadline to decide whether or not the Local Authority is going to undertake an assessment, issue an EHC Plan, and produce and issue the draft, the wording is;
“The Local Authority need not comply with the time limit referred to in paragraph (x) if it is impractical to do so because – for a reason relating to the incidence or transmission of Coronavirus.”
Thus where prior to these new Regulations there were set time limits by when the Local Authorities and other bodies (including Health Boards, and Mediators) to do certain things as from 1st May, Local Authorities will instead be deemed to have carried out their duty provided the decision/action has been taken as soon as “reasonably practicable.”, and will excused from missing the deadlines if it is impractical to meet them due to Coronavirus.
The timescales that are affected are essentially all timescales in relation to EHCP processes, namely:
Transfers of EHC plans between Local Authorities - regulation 15, in relation to 15 working days;
A change to the responsible commissioning body - regulation 16, in relation to 15 working days;
Annual review decisions - regulation 20, in relation to two and four weeks of the meeting;
Annual review decisions where the child/YP does not attend a school/other institution - regulation 21 in relation to two and four weeks of the meeting;
Re-assessments - regulation 25, in relation to 15 working days;
Amending or replacing an EHCP following a re-assessment - regulation 27;
The requirement to consider mediation – regulation 33;
Where a parent/YP does not wish to/fails to pursue mediation - regulation 34;
Mediation – health care issues – regulation 35(2), (3) and (4)
Mediation – no health care issues – regulation 36(2), in relation to 30 days;
Mediation certificates under section 55(5) - regulation 39(1) and (3)
Steps to be taken by a local authority following mediation - regulation 42;
Compliance with orders of the first-tier tribunal – regulation 44(2)(d) (e) (f) (h);
the actions that the local authority and health commissioning body must take when the First-tier Tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan (as part of the National Trial)
Unopposed appeals where LA’s concede before the LA Response; - regulation 45(4) (5) (6A);
Disclosure of EHC plans in relation to higher education – regulation 47;
Publication of comments on the local offer - regulation 56(3);
The process for a local authority reviewing for the first time the making and use of direct payments from a Personal Budget that is part of an EHC plan; new regulation 2A of The Special Educational Needs (Personal Budgets) Regulations 2014;
Decisions whether or not to assess – in relation to 6 weeks – regulation 5;
Decisions whether or not to issue an EHC Plan – in relation to 16 weeks – regulation 10;
The issuing of draft EHC Plans – in relation to 18 weeks – regulation 13, and;
The issuing of final EHC Plans – in relation to 20 weeks - regulation 13.
It is really important that we stress the following three things;
Firstly – the actual process must continue. Thus, EHC Needs Assessment Requests can still be made, and must still be processed. EHC Needs Assessments must still be carried out, Draft EHC Plans must still be issued, Final EHC Plans must still be issued, Annual Reviews must still go ahead, EHCP’s must still be transferred across local authorities etc. It is simply the timing of the decision that has been relaxed, meaning these actions no longer must take place within fixed timescales.
“The Local Authority need not comply with the time limit referred to in paragraph (x) if it is impractical to do so because – a reason relating to the incidence or transmission of Coronavirus.”open to judicial review challenges. The new Regulations and guidance are clear that they only apply to timescales, and that EHC Plan processes remain in place.
The Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19) issued by the government on 30th April 2020 clearly states:
“This guidance also confirms which key elements of the processes over EHC needs assessments and plans are unchanged. Notably this includes that a local authority must still consider requests for a new EHC needs assessment, must still secure all of the required advice and information in order to be able to issue a plan, and must have regard to the views and wishes of a child, the child’s parent or a young person when carrying out its SEND functions under the Children and Families Act 2014.”
Secondly – the coronavirus exception only applies where it is not reasonably practicable for a person to meet a requirement “for a reason relating to the incidence or transmission of coronavirus.”
Thus, while this criteria may be relatively easily fulfilled at EHC Needs Assessment level, ( e.g. if you have NHS professionals required in the assessment that have been diverted to the frontline to deal with the crisis, or social workers dealing with unprecedented demands for services), it will be much more difficult for a Local Authority to justify in the case of a final EHCP not being issued, if a Draft EHC Plan already exists for example - unless every member of the Local Authority SEN team are struck down with the virus.
While the Regulations state as soon as ‘reasonably practicable’ this is not a time for Local Authorities to sit back and do nothing. That is not what they are intended to do. Local Authorities will be expected to set out the reasons for any delay and the delay must be justified “for a reason relating to the incidence or transmission of coronavirus” and not any other reason.
Lastly, for all the worried parents who contacted me to state they had already been waiting for weeks or months for their decision before these new Regulations were announced – if your deadline (such as the end of the 20 week to issue a final EHCP) had passed before 1st May 2020, the amended timescales do not apply to you. This is because the amendment regulations were not in force then, and do not work retrospectively. Therefore, you can still issue a pre-action protocol letter to judicial review to force a decision, as the old timescales in those cases continue to apply.
I have also had some queries in light of these new Regulations about LA Response deadlines to Appeals. Timescales in respect of SEND Tribunal Appeals are unaffected. They are different timescales and please do not confuse the two. Appeals in respect of refusals to assess, refusals to issue, against the content of issued Plans (including national trial cases) and cease to maintain Appeals can still be lodged within the normal statutory timescales to the First-tier Tribunal. The First Tier Tribunal has already put measures in place to provide business as usual by holding case management hearings and appeals by telephone and video link. Early indications are that this is a viable way of conducting at least most final hearings.
As set out in the Explanatory Memorandum to the amendment Regulations, whilst they are currently in force until 25th September 2020, should the Government lift its social distancing guidance or stay at home rules, then the Government may revoke the amendment regulations early.
Equally, if there is evidence that the effects of coronavirus (COVID19) will last beyond 25th September 2020, then it may be necessary to extend the period in which the amendment regulations are in force.
At the moment we do not know whether the amendment regulations will continue beyond September. will however keep a watchful eye on this and duly update this article to reflect any changes.
Duty to provide provision under s.42
The second document issued on 30th April 2020 was the also anticipated notice to temporarily modify s42 of CFA 2014, more formally named Coronavirus Act 2020 Modification of section 42 of the Children and Families Act 2014 (England) Notice 2020.
This Notice also came into force on 1st May 2020 and is currently set to last until 31st May 2020 but is likely to be extended. It can only be extended for one month at a time and must be kept under review.
The Notice again appears to be a response to many of the questions I have received from social media, such as:
How can we manage/teach our learning at home without our EHCP allocated TA support? School is setting virtual work but we are struggling.
My daughter is 18 with an EHC Plan. She has a mentor, SALT sessions and English lessons in college, she also receives a 1:1. Should she be seeing these people outside of college or by Skype if college closes?
If schools close, can I deliver speech and language therapy sessions to children on my caseload with EHCP’s via video link? Will this be reimbursed in the same way as 1:1 school sessions?
When ABA programmes are funded through an EHCP, will the funding still be provided so the provision can be delivered through home ABA sessions when schools close?
How are government/LA’s/Schools proposing to meet the provision in Section F of children’s EHCP’s?
My daughter is out of school, what happens to the therapies in her EHCP?
As is evident from these questions, the global pandemic brought about a number of concerns from worried parents about what support their children would be provided with under their EHC Plan when schools closed to all but specified categories of children.
Whilst children with EHC Plans are children who are entitled to attend school, many parents faced significant pressures to not send their children to school. Additionally, given that school would in virtually all cases be very different, with changes to routine, staff, class groups and often cohort, many children’s needs prohibited them being able to attend without experiencing extreme distress. This therefore leaves parents at home, doing their very best to meet their child’s needs, with little or nothing by way of external support and provision.
Initially, the Local Authority remained under an obligation to provide provision as specified in an EHC Plan. However, this of course proved difficult or even in possible, as children are not in schools, people are social distancing, and illness and deployment to COVID wards affects staffing levels.
As such, the Secretary of State has now issued a Notice, as permitted under the Coronavirus Act 2020, temporarily modifying the duty on Local Authorities to provide the provision contained in Section F of an EHC Plan, or risk being challenged by way of Judicial Review.
While the Coronavirus Act 2020 also allowed for a temporary reduction to the duty to conduct annual reviews (section 44 CFA 2014) and the duty on a school to admit a pupil (under section 43 CFA 2014) these powers have not been enforced. The only power that has been envoked by the issuing of a Secretary of State’s Notice is the temporary modification to section 42 of CFA 2014.
The fact that the Secretary of State has only temporarily modified s.42 rather than all three possible sections is at least encouraging.
So, what does this temporary relaxation mean?
Most importantly, EHC Plans will remain in force. Provision should not be amended due to Coronavirus, and the resultant unavailability any particular provision.
Now, under Section 42 of the Children and Families Act (CFA) 2014 rather than there being an absolute duty upon Local Authorities to secure and deliver special educational provision contained within Section F of an EHC Plan, the duty has been temporarily modified, so that the duty will be treated as discharged provided a Local Authority has used ‘reasonable endeavours’ to deliver the provision.
Annual reviews will continue to run by flexible means, this may be by video (Zoom or Microsoft teams or similar) or telephone conferencing – whatever suits all parties.
Schools must continue to admit pupils under s43 CFA 2014.
This does not however mean that Local Authorities can enforce blanket bans or use this as an excuse not to do anything.
It is clearly stated in the Notice:
“The modification enables local authorities and health commissioning bodies to arrange reasonable alternatives to the usual service during the outbreak, such as by delivering therapies remotely, or using video.”
Further the Guidance sets out the following comprehensive examples (based on existing good practice) of alternative arrangements that can be put in place to satisfy the ‘reasonable endeavours’ requirement.
The list is intended to be illustrative and is not a comprehensive list of possible arrangements and I would urge parents, schools and LA’s to think creatively and flexibly as to how Section F can currently be delivered. The Guidance examples include:
Examples of alternative arrangements:
alterations to the frequency and timing of the delivery of provision in school, for example, moving to a part-time timetable
a temporary placement in another school - mainstream or special. This will need to be with the agreement of the parent or young person and full account should be taken of the needs of the child or young person
attendance at a local hub
adjustments to home-to-school transport arrangements to support a modified school attendance timetable
class sizes being significantly reduced to ensure social distancing can be applied in classrooms
video class sessions for children to keep in touch with classmates and teaching staff
a home learning reading programme, provided by a Special Educational Needs Co-ordinator (SENCo) and reviewed weekly
provision of printed exercises or worksheets
weekly phone or video contact from school staff to monitor home learning programmes, to provide feedback, and to make adjustments as necessary
a school or college delivering direct education or support in the home where a young person is not able to attend school or college (subject to risk assessment and appropriate health protection measures)
educational psychologists providing brief therapy interventions
specialist SEN Teachers providing advice and support to parents in relation to autism, visual or hearing impairment or literacy programmes
enlarged materials being provided in the home where a child or young person has a visual impairment.
a speech and language therapist delivering sessions via video link
a health visitor or school nurse providing health advice or developmental reviews via teleconferencing
the parent and child travelling to receive the therapy at suitable premises, where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19)
an occupational therapist or a physiotherapist video linking to a child’s home and modelling exercises that the parents could do with their child
occupational therapists providing webinars for school staff on topics such as sensory strategies or pre-writing skills, or a teletherapy service
sending home accessible hard copy therapy programmes with additional phone support for parents and young persons to help them work through them
where an EHC plan already includes a personal budget or a direct payment, widening its use to enable the purchase of equipment or other relevant material to support home learning
exercise sessions by video
provision of alternatives to short breaks by providing online resources and activities for young people
loaning parents school equipment, such as specialist support equipment (seating equipment, IT equipment used at school etc) to be used at home to support learning
counselling, or cognitive behaviour therapy, delivered over the phone once a week for 6 weeks by a mental health worker.
There is therefore a requirement that Local Authorities and Schools need to be very creative. They cannot simply refuse to provide anything because the school is shut for example, that is unlawful.
Additionally, if Local Authorities can continue to secure or arrange the provision exactly as it is set out in Section F of the EHC Plan, they should continue to do so. This modification only applies where that is not possible, and only if it is not possible due to Coronavirus.
The issue of funding should not be an excuse to refuse a modified delivery of Section F of an EHC Plan as schools and colleges will continue to receive their usual funding, including from the high needs block, to support them through this period of disruption (see financial support for education early years and children's social care guidance). The government are also providing financial support to schools to meet additional costs arising from Covid-19 (see financial support for school's guidance).
The current public health crisis will leave no aspects of our lives untouched. The care and support which children and young people ordinarily receive will be hugely disrupted and I can understand whole-heartedly why this worries parents.
In the joint letter issued on 30th April 2020 by the Department of Health and Social Care and Department for Education, they affirm:
Our aim is that, as far as practicable during this difficult period, EHC processes continue so that children and young people still get help and support whilst accepting that this may have to be done differently. We expect commissioning bodies – and the services they commission – to maintain education, health and care provision for vulnerable children, and also to extend extra support, where possible, to families in most need – recognising that home isolation is extremely hard for many children and young people with SEND and their families.
It remains that we are in an unprecedented situation and nobody has hard and fast answers about exactly what will happen, and when. The reality as we go through the coming weeks and months is that services may close, 1:1’s may need to self-isolate or become unwell, and medical, theraputic and mental health professionals will be diverted to where they are needed most within health services.
This global emergency calls for open minds and collaboration about ‘how’ we can creatively deliver provision more than ever, to ensure children/young people with special educational needs can continue to get the care and support they need.
Only by exploring all options available to them will Local Authorities be able to satisfy the requirement that they have used ‘reasonable endeavours’ to deliver the provision. A blanket refusal or disregard for their duties will not suffice.
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