Covid-19 and children/young people with SEND

Much has happened over the last few weeks. Here’s a round-up of where we currently stand and what we know to date. This information is correct as of 30 March 2020.

The Coronavirus Act 2020 has now been passed – the Act has implications for families of children and young adults with SEND. Whilst EHCPs will remain in force, the Coronavirus Act 2020 provides for the possibility of a temporary relaxation of duties on Local Authorities (LAs). Schedule 17, para 5 sets out what the Secretary of State can temporarily remove or relax in England.

Most relevant for EHCPs are the following possible changes:

Coronavirus Act 2020

What this means

Schedule 17, para 5 (6): ‘Any duty imposed on a person by section 42 [Children and Families Act 2014 (CFA)] is to be treated as discharged if the person has used reasonable endeavours to discharge the duty’.

Section 42 CFA imposes an absolute duty upon LAs to secure and deliver special educational provision contained within an EHCP but under the Coronavirus Act the Secretary of State can change this from an absolute duty to ‘reasonable endeavours’ to deliver provision in the Plan.

Schedule 17, para 5 (5) (g) permits the Secretary of State the power to disapply s43 CFA which is the duty for a school/college named on the EHCP to admit.

Placements named in Section I of an EHCP may no longer have a duty to admit.

Schedule 17, para 5 (5) (h) permits the Secretary of State the power to disapply s44 (1) CFA (reviews and reassessments).

The duty to carry out Annual Reviews within a year may be put on hold. Where reviews are put on hold, this may delay the right of appeal.

It is important to note that the Secretary of State must issue a notice before applying any of the above and that any notice must not exceed one month (but there could be repeated notices).

Until then, the LA continues to have a duty to make provision in accordance with Section F of the EHCP.

If a notice is issued, then the LA still has a duty to use ‘reasonable endeavours’ to make provision. This could mean an increase in personal budgets, the delivery of therapies remotely etc. However, given the current situation, it is inevitable that services will be disrupted and flexibility is required. If you have a way in which your child’s provision could continue, albeit in a different way, then you should put it to the LA in the first instance.LAs will be under tremendous strain so you may need to give them more time to respond but they should be working with parents to work out a solution as quickly as possible. Blanket refusals to consider alternative ways of delivering provision are not permitted.

Families will already be under tremendous strain. Whilst the emergency measures demonstrates just how much of a crisis we are in, it is important that they have as short a duration as possible, so that children and young people with SEND can access the care and education they need and take extra pressure off families.

  • The Local Government Ombudsman (LGO) has suspended all complaints enquiries of councils and care providers and all phone and online submissions for the time being. This is to protect the capacity of LAs and care providers to deliver frontline services during this period. The LGO will consider the delays in calculating the normal 12-month period to bring a complaint when services resume. For updates see www.lgo.org.uk/coronavirus
  • Move to remote SEND Tribunal hearings – The SEND Tribunal has responded very quickly to remote hearings and has been run training sessions for judges and others. From 23 March 2020, the Tribunal started using technology to enable remote hearings.  If parties do not have reliable telephone or internet connection, we have been told that it may be possible to arrange to use IT equipment at the nearest Courts and Tribunals hearing venue, social isolation permitting.

Early indications are that remote hearings are running well. The Tribunal is thinking of ways in which individuals can meet separately for discussions through the Tribunal portal. Attendees may require more than one device – one for the hearing, another for the bundle and any late evidence and perhaps another for discussions or notes passed between representatives, experts and parents.

Remote hearings will also address overcapacity with the Tribunal service with a huge increase in appeals and resulting postponement of hearings, often due to a shortage of venues and judges. Remote hearings will mean judicial time is not wasted, the possibility of attendees to agree dates more readily, fewer costs incurred due to overnight stays, travel time and costs.

Parents may also feel more comfortable in familiar surroundings and they won’t have to arrange extensive child care (although, of course, they will need to ensure they are free of child care duties during the course of the hearing). Another consideration, simply because it’s easier and less daunting, we may hear the child/young person’s views more often.

Variation of the SEND Tribunal appeal timetable:

Transition appeals are being prioritised by the Tribunal. A transition appeal is to run to a 12-14 week timetable. However all other types of appeal being registered will run to a longer 20-week timetable.

The Boyes Turner Education Team is working remotely during this time and fully able to continue to deal with new enquires. We can help at whatever stage you are at with your EHCP and can be contacted on 0118 952 7219 or via senexpertsolicitors@boyesturner.com

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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