Education, Health and Care Needs assessments and plans: temporary legislative changes relating to coronavirus (COVID-19)

In accordance with the rights available to the Secretary of State for Education contained in the Coronavirus Act 2020, notices were issued on the 30^th April 2020 which “temporarily… give local authorities, health commissioning bodies , education settings and other bodies who contribute to [issuing and maintaining EHCp’s] more flexibility in responding to the demands placed on them by coronavirus (COVID-19)”. Full details can be found HERE

So what are the effects of all of this?

First, the Department of Education are keen to make clear that these are “modifications” which are temporary. That said, they are significant and include:

Changes to Section 42 of the Children and Families Act 2014

• Section 42 of the Children and Families Act 2014 includes the duty placed on a local authority to secure the special educational provision contained in section F of an EHCp. Now a local authority will have discharged this duty if they have used ‘reasonable endeavours’ to do so.
• Section 42 also places the same duty in relation to health care provision on the responsible commissioning body. Again, this is now subject to the reasonable endeavours test.

Reasonable endeavours are not defined and are dependent on local circumstances resulting from the pandemic. The Department of Education gives examples of what alternative arrangements may be reasonable. These include:

• 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
• weekly phone or video contact from school staff to monitor home learning programmes, to provide feedback, and to make adjustments as necessary
• specialist SEN Teachers providing advice and support to parents in relation to autism, visual or hearing impairment or literacy programmes
• a speech and language therapist delivering sessions via video link
• 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
• 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.

To help with this, the Government has announced a package of support to ensure vulnerable and disadvantaged young people across the country receive free laptops. See details HERE

This modification will last 1 month from 1^st May 2020, though they could be extended into following months.

Timescales for EHC needs assessments and plans

These changes will last from 1 May to 25 September 2020 (inclusive) but should only be seen as temporary. The Department of Education are keen to stress that they only affect timing.

In summary, the whole of the process of issuing an EHCp should take no more than 20 weeks; this period is made up of a number of stages, including the 6-weeks allocated for a local authority to determine whether they should move on to a EHC needs assessment following an application. The changes introduced now mean that if it is impractical for the local authority to meet a stage deadline because of a reason relating to the incidence or transmission of coronavirus (COVID-19), then it must conclude the said stage as soon as practicable. The Department of Education are keen to point out that timescales have not been abandoned.

In addition to the above, The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020, which also come into force on the 1^st May 2020, have also made (temporary) amendments to The Special Educational Needs and Disability Regulations 2014. We will address these in a future post.

Talem Law

30^th April 2020.