With a view to making sure that parents are as certain as is possible in these uncertain times, our specialist solicitors have considered the Coronavirus Bill, as it is currently drafted.
It is important to note that the Coronavirus Bill is not yet law, and therefore, could change. This digest is accurate as at 11:26am on 20/03/2020.
Parents and Young People in the process of obtaining an EHC Plan:
If you are making a request for an EHC Needs Assessment, in the EHC Needs Assessment process, awaiting a decision as to whether an EHC Plan will be issued, or awaiting your final EHC Plan, those processes will continue, and legally, the same deadlines will continue to apply. If those deadlines are missed by the Local Authority, they can still be challenged by way of Judicial Review.
There is nothing to prevent new requests for EHC Needs Assessments to be made. Parents can submit their own request for an EHC Needs Assessment, and no particular forms need to be filled in for a legally valid request for an EHC Needs Assessment to be made.
Right of Appeal to the SEND Tribunal:
There is no indication that the Right of Appeal to the SEND Tribunal is being curtailed in any way. The Tribunal appear to be determined to continue as normally as possible and are taking steps to ensure that Hearings can go ahead wherever possible. This means that parents must continue to monitor the Right of Appeal (which will be 2 months from the date of the decision letter/letter enclosing the EHC Plan) and obtain a mediation certificate as and when appropriate.
Enforceability of provision within EHC Plans:
As expected, the enforceability of the provision within EHC Plans has been reduced. Rather than being an absolute duty, where provision must be provided, the Local Authority must now make “reasonable endeavours” for provision to be put into place. The ability to enforce provision in an EHC Plan through Judicial Review is therefore reduced, but not entirely removed. It may still be possible to enforce provision contained in an EHC Plan.
In the immediate term, it is likely that many parents and young people will find that the provision contained in Section F of the EHC Plan will not be provided.
Annual Reviews/Re-assessments of Special Educational Needs:
If you child has an Annual Review in the near future or is currently undergoing a re-assessment of their special educational needs, then it is likely that these will be suspended or postponed until further notice.
Attendance at educational placements by Children and Young People with EHC Plans:
The Coronavirus Bill itself does not set out who will be allowed to continue to attend their educational placement, and it does not define "vulnerable person". This information is set out in separate guidance, which can be found here.
Vulnerable children include children who are supported by social care, those with safeguarding and welfare needs, including child in need plans, on child protection plans, ‘looked after’ children, young carers, disabled children and those with EHC Plans.
This is not compulsory. If your child has an EHC Plan and you do not wish for them to attend school, then they can stay at home.
Educational placements include schools, academies, 16-19 academies, Further Education providers and higher education providers.
If you are intending for your child to attend their educational placement on Monday, you must contact them as a matter of priority to advise them of this, so that they can make staffing arrangements. If your child’s placement has already closed, then you must make immediate contact with your Local Authority to identify which placement they can attend from Monday.
The government has the power to orders schools to close, and also, to remain open. There will be provision available locally for your child to attend, but this may not be their usual school.
What happens if my child’s placement is Ordered to close?
An educational placement and registered childcare provider can be required to close completely; to close some of their premises; and to close their doors to some categories of attendee, or to a section of their attendees.
Any such closure is “temporary” and will last until the end of the period that is specified in the closure directions, unless the closure direction is revoked before then.
What the placement is closed, the following statutory duties are cancelled, or changed.
Section 19 Children and Families Act 2014. The Local Authority’s duty to arrange suitable educational provision at school or otherwise does not apply where a child or young person is not receiving suitable education because of a temporary closure direction.
Section 432 – 443 Education Act 1996. The enforcement of attendance of children at school does not apply to parents or Local Authorities where the reason for non-attendance is attributable to a temporary closure direction.
Section 444 Education Act 1996 – A child’s failure to attend school is disregarded. The parent will not be guilty of an offence.
Section 7 Childcare Act 2006 and section 1 of the Childcare Act 2006 (free nursery and preschool hours) will not be breached where the childcare provider is under a temporary closure direction
If your child’s placement is ordered to close, and they have an EHC Plan or otherwise fall into the vulnerable category, then your child can still attend education. It will just not be within their usual setting.
As such, children will not necessarily attend the school named in their EHC Plan. However, the government does have the power to distinguish between special schools and mainstream schools, and between types of school, when making orders for schools to close or open. That hopefully means that children who cannot cope in mainstream even on a basic/enrichment timetable will not be placed in mainstream settings. It also gives the government scope to order some or all residential schools to stay partly or fully open (e.g. as children's homes or care homes). However, we don't yet know exactly how these powers will be exercised.
Can educational placements be ordered to stay open/re-open?
Yes, educational placements AND Local Authorities can be required through “temporary continuity directions” to;
stay open, to re-open, or to open when they would not usually be open;
provide education, training or childcare, or services relating to them, or ancillary services or facilities
allow specified persons to attend the institution to receive that provision
alter term dates
provide, or arrange for, transport or other services in relation to the provision of education, training etc
comply with such other provision for such other purposes as the appropriate authority considers appropriate
In practice, this means placements which took the decision to entirely close, could be required to reopen. Placements could be required to admit and provides education, training or childcare to any “specified persons”, both in usual term time, and during times when children and young people would usually be on holiday.
The above powers are specific to England, but there are similar powers in Wales, Scotland and Northern Ireland.
Temporary continuity directions have effect until the end of the period that is specified in the direction, or a revocation of the direction by the Department of Education.
Exams:
The Bill does not address examination cancellation.
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