The Coronavirus Act 2020 has now passed through Parliament and received Royal Assent on 25th March 2020.
We previously examined how the draft proposals will impact children with special needs and Education Health and Care Plans (EHC plans) and families going through the appeals process. The information below is intended to update our previous article published on 20th March 2020. We have taken into account the Act and also updated guidance which can be accessed here.
Does a child or young person with an EHC plan have the right to attend school during the COVID-19 outbreak?
The Government has said that schools will remain shut until further notice. However, children classed as ‘vulnerable children’ may be entitled to attend school. Vulnerable children include those
who have a social worker and those children and young people up to the age of 25 with education, health and care plans (‘EHCPs’)
You can find more details here. Children with special needs but without an EHC plan must remain at home unless they have a Social Worker or a parent or carer who is a ‘key worker’. Key workers are anyone whose work is “critical to the COVID-19 response” and this list can be found here.
Should all children with an EHC Plan attend school?
It should be stressed that children and young people with EHC Plans will not automatically be eligible for a school or college place. Their eligibility will be subject to a risk assessment. Schools, colleges, other training providers and Local Authorities will need to consider the needs of all children and young people with an EHC Plan, alongside the views of their parents, and undertake a risk assessment for each child or young person. Therefore, if a child or young person has underlying health conditions or a family member living with them, this should be made clear to the person undertaking the risk assessment and it should be central to the decision making.
The guidance also stresses that, decisions should be made on an individual basis with advice from an appropriate health professional. If your child or a member of your household has underlying health conditions we would strongly recommend seeking urgent medical advice before considering sending your child to school. The safety and well-being of your child and other vulnerable people in your household is paramount during the COVID-19 outbreak.
What if a parent wants to keep their child at home even though they have an EHC Plan?
If you prefer to keep your child at home due to health and safety concerns, it appears you will not be sanctioned with fine for non-attendance. In fact, the Government is advising parents to keep their children at home unless “absolutely necessary”. Furthermore, the guidance states, if
a risk assessment shows that the needs of an individual with an EHC plan cannot be met at home, it is likely they will continue at their usual school or college, but there may be a need to attend a different setting, for instance due to insufficient staffing ratios which cannot be remedied by drawing on additional appropriately skilled staff.
The first part of this confirms that the emphasis is on considering whether the needs of an individual with an EHC plan cannot be met at home. As stated above, a risk assessment should be undertaken for every child with and EHC plan whose needs are unable to be met at home.
What is the case for children or young people due to get an EHC Plan but not yet been issued by the local authority?
If this is the case for your child, they will not automatically fall within the definition of ‘vulnerable children’ for the purposes of attendance at an education setting during the COVID-19 outbreak. However, their educational setting and local authority have discretion to undertake a risk assessment and offer support if that is needed.
Does the local authority have a duty to implement the special educational provisions set out in the EHC Plans?
It is a well-established position that s.42 Children and Families Act (CFA) 2014 places a mandatory duty on local authorities to arrange for all the special educational provisions set out in an EHC plan, without exception. 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. Further to the Coronavirus Act, the local authority’s duty to secure provision under an EHC Plan can now be modified by the Secretary of State to a reasonable endeavours duty. In other words, a local authority will discharge its duty under s.42 CFA if they have used reasonable endeavours to provide the required special educational provisions. This appears to be a much lesser entitlement for the period of time that this legislation remains in force.
In addition to above, the Secretary of State also has the power to disapply s43 CFA which places a duty on a school or college named in Section I of an EHC plan to admit a child. In cases where a school is unable to admit a child when it is named in its EHC plan, the LA should still use reasonable endeavours to secure special educational provisions set out in the plan.
What is meant by “reasonable endeavours” mean?
At present, no guidance has been issued setting out what “reasonable endeavours” means. The burden will be on local authorities to demonstrate they have used use reasonable endeavours to implement provisions set out in the EHC plan. We would suggest that this means doing everything that is reasonable and practical in the circumstances, having good dialogue with parents and exploring creative ways to meet needs. Parents, advocates and support workers should continue to liaise with schools and SEN Officers to ensure everything possible is being done. If you have ideas of how your child can be supported you should tell the local authority. The Local Authority like many organisations is likely to experience staff shortages and significant disruption to services, given many staff members will be working from home, possibly with child care responsibilities due to school closures. These factors might need to be taken into account.
If I agree to alterative provisions not set out in the EHC Plan will my child’s Plan be amended?
In short, the answer is no. It is Important to note is that any changes made to a child or young person’s provision in their EHC Plan would only remain in place temporarily. The full range of provision would be reinstated once the temporary notice expires. However, if the local authority makes any permanent changes to a child’s EHC Plan they are required to issue a decision letter outlining a right of appeal to the First Tier Tribunal (Special Educational Needs and Disability). Changes to an EHC Plan usually occur when a child is transitioning to different phases of their education (i.e. primary to secondary school) or following an Annual Review. It is likely that any upcoming Annual Reviews will be postponed until a later date.
What can a parent or carer do if a LA refuses to engage or clearly has not used reasonable endeavours to implement provisions of an EHC plan?
It is important to note that, as there is a lack of guidance around what constitutes ‘reasonable endeavours’, if a dispute was brought before the court it remains to be seen how judges will interpret this in light of exceptional strains that will undoubtedly be placed on local authorities due to the pandemic. Many local authorities are likely to experience staff shortages and a lack of access to external providers of services. We urge parents to work closely as possible with their child’s education providers and local authorities to explore ways in which their children can continue to receive specialist support. Both parents and local authorities will need to be flexible and open-minded during this national crisis.
However, if local authorities refuse to engage or clearly have not used reasonable endeavours, parents should not feel that they cannot seek advice and support. In certain circumstances they may be able to seek court intervention through Judicial Review proceedings, although as a last resort.
Judicial Review is a process during which a court considers the lawfulness of a decision, action, or inaction by a public body. Judicial Review must be brought promptly and in any event within three months of the event complained of. These rules are normally applied very strictly so if any parent is concerned that the local authority is not exercising reasonable endeavours, they should seek advice as soon as possible. Judicial Review is a last resort remedy so your legal advisor will need to first try to resolve the issues through a ‘Letter Before Action’. These types of proceedings are very complicated therefore legal advice should be sought on whether it is appropriate for your child’s situation.
When will the temporary legal requirements commence and end?
The absolute duty to implement special educational provisions set out in EHC plan and the ‘duty to admit’ remain in force until the Secretary of State has issued a notice. The notice cannot exceed one month but actively refreshed by Secretary of State on a regular basis. The Coronavirus Act has a maximum duration of 2 years, but Parliament will have the opportunity to bring to an end the majority of the provisions contained within the Act every 6 months. It is hoped that once schools reopen and the national crisis is averted the usual CFA duties on local authorities will resume as they serve as a vital protection of the rights of vulnerable children and young people.
Is the SEN Tribunal still hearing appeals in the coming weeks?
Yes. We previously reported that the First Tier Tribunal and Upper Tribunal is taking a pragmatic approach adopting a ‘Pilot Practice Direction’ which will remain in place for a period of six months.
The Pilot Practice Direction 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”. Despite some technical difficulties being reported by parents and advocates, overall remote hearings are an effective alternative and allowing the Tribunal to make important decisions about a child or young person’s SEN. Some of these decisions relate to school placements for September, which if delayed would cause great anxiety in parents and children. We take this opportunity to thank Tribunal staff, clerks, judges and specialist panel members for their efforts to keep things ‘business as usual’ during this crisis which has otherwise brought many services across the country to a halt.
Will the Tribunal postpone hearings or extend deadlines where it is not possible to secure evidence from key professionals or experts?
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”.
Parents will be reassured that our Education Law Team has made applications for postponements and extensions due to the impact of COVID-19, which are being granted by the Tribunal.
Can new appeals be lodged?
Yes. The Tribunal will continue to register any new appeals. They will be listed on a 20-week timetable but if your appeal relates to a phase transition appeal will be listed on a 12-14 week timetable. In practice, it will be difficult for an appeal to be heard in this timescales unless professional assessments are not required. As stated above, the Tribunal appears to be taking a very flexible and pragmatic approach.
The usual deadlines to appeal remain in force. Parents, carers and young people must lodge appeals within 2 months of the date of decision letters received from the Local Authority or 1 month from the date of the mediation certificate, whichever is later. A mediation certificate must be sought within 2 months of the date of the decision letter.
If you have missed the deadline to appeal or request a mediation certificate for reasons related to the COVID-19 outbreak, you can still lodge late appeals explaining the reasons for the delay and provide evidence where possible. The Tribunal is likely to be understanding and flexible in these circumstances.
Will CCLC continue to offer education advice and assistance during the COVID-19 pandemic?
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 EHC Plans are delivered. Our services remain open and we will continue to support the children and young people that depend on us.
For years our Education Law Team has been providing specialist remote advice to parents and carers across England and Wales. For more information about accessing our services, please visit here.
We are able to offer both legal aid and private client services. If you think you or your son or daughter may be eligible for Legal Aid, please contact Civil Legal Advice on 0345 345 4345 for an initial assessment of your eligibility.
You can also get free advice and information on child, family and education law from our Child Law Advice Service, here.
Written by Qaisar Sheikh, Head of Education Law
31st March 2020