Coronavirus impact on EHC plans and children with special educational needs

CCLC examines the impact of coronavirus on schools, the Special Educational Needs (SEN) Tribunal and children on EHC plans or who have special educational needs

Coram Children’s Legal Centre (CCLC) supports hundreds of families each year in appeals related to special educational needs. In addition our work helps ensure specialist provisions set out in Education Health and Care (EHC) Plans are delivered. The measures being implemented by the Government to tackle the COVID-19 pandemic will certainly have a huge impact on, not only the children and young people we represent, but children all around the country, particularly those with special educational needs. Access to specialist placements, therapies and specialist educational provisions and teaching are vital tools to ensure children and young people with complex needs can make progress in a range of areas but in fact, it can go even further than that. These provisions can be necessary to prevent children from regressing and address school related anxieties or mental health difficulties.

School closures

The Government’s response has been quick but somewhat contentious. It is of course known by most that assessments and exams, including GCSEs and A-Levels are cancelled and schools will remain closed until further notice, except for vulnerable children. This includes all children with social workers and those with EHC plans. The Government has indicated that specialist residential placements and special schools should stay open wherever possible. The situation for children and young people with special educational needs (SEN) but without EHC plans is uncertain at present.

The Government’s decision to keep schools open for children and young people with EHC plans has raised many concerns, not least because some children with disabilities and complex SEN will have underlying health conditions, making them particularly vulnerable to COVID-19. The answer could be in the Children and Families Act 2014 which places an absolute duty on local authorities to deliver the special educational provisions set out in EHC plans. A failure to do this can leave local authorities facing judicial review proceedings, especially as the statutory framework does not appear to provide national emergency exceptions. Given there is likely to be a lack of staff able to support vulnerable children and young people (some who require very high staff to pupil ratios of support), in reality it is difficult to know what a court would do by way of intervention. In any event, it is possible that the draft emergency ‘coronavirus bill’ will make temporary changes to local authority duties regarding delivery of specialist provisions (see below).

Could certain provisions and therapies be delivered remotely though the use of video conferencing? How effective would this be for children with severe learning difficulties and/or behavioural difficulties? What steps will be taken to ensure vulnerable children and young people with underlying health needs will be kept safe whilst they attend school or are supported in residential schools or within their homes? These are questions being asked by many. If there is a lack of healthy teachers and specialist support staff, it is certainly worrying for parents not knowing how their children will be supported.

Draft emergency ‘coronavirus bill’

At the same time as announcing the above measures, the Government has published its draft emergency ‘coronavirus bill’ alongside its guidance for schools and local authorities. The bill proposes a power for the Secretary of State to disapply or vary specified existing requirements contained in education legislation. This could include the duty on schools and other institutions to admit a child where they are named in the child’s EHC Plan. The Secretary of State will also be able to vary or disapply some of the statutory provision related to special educational needs. This means that the local authority’s duty to secure provision under an EHC Plan may be modified to a reasonable endeavours duty. Although, Annual Reviews of existing EHC plans are likely to be adjourned for the foreseeable future, parents will still be able to request EHC Needs Assessments, and local authorities should issue EHC plans where this has been determined as necessary following assessment.

SEN Tribunal appeals

Hundreds of parents across England and Wales are currently appealing decisions of local authorities in respect of their child’s SEN. This might include disputes about specialist educational provisions, therapies and school placement. Some of these appeals relate to children out of school or those living in residential schools.

We are pleased to see that the First Tier Tribunal and Upper Tribunal is taking a pragmatic approach. In response to the COVID-19 pandemic, Sir Ernest Ryder, Senior President of Tribunals, has released a statement outlining details of a ‘Pilot Practice Direction’ which will remain in place for a period of six months. This includes the following direction: “where it is reasonably practicable and in accordance with the overriding objective to hear the case remotely (that is in any way that is not face-to-face, but which complies with the definition of ‘hearing’ in the relevant Chamber’s procedure rules), it should be heard remotely”. A number of hearings are being heard remotely (via video or telephone conferencing). This is proving to be an effective response by the Tribunal and it has meant important decisions regarding a child or young person with special needs (some complex and profound) is not delayed. CCLC has been involved in some of these remote hearings and found them to be a very useful solution to a fast developing situation. The pilot practice direction can read here.

Inevitably, there will be delays caused to appeals, especially where expert assessments are required. School closures have meant delayed assessments or assessments being undertaken in family homes. In some of our cases, assessments have been cancelled due to experts having to self-isolate. In these circumstances, the Tribunal appears to be taking a reasonable and fair (case by case) approach. The Tribunal has stated they “will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions and the postponement of hearings”. This will be reassuring for many parents going through the appeals process.

The future

It is hoped that the Government will urgently provide greater clarity and clearly set out its proposals for children and young people with SEN and how they will be supported over the coming weeks or months. The bill is still going through Parliament so it is possible that further changes or amendments will be made. In addition, further guidance may be issued giving light to some of the proposals being put forward. We will continue to monitor and review the Government’s response and provide updates as things progress.

In the meantime, our services remain open and we will continue to support the children and young people that depend on us. 

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Qaisar Sheikh, Head of Education Law