Click HERE to find the page that contains updated information and guidance for the extended powers SEND Tribunal: extended appeals registered from the 1st September 2021. To view information relating to the National Trial, please click here.
Is school attendance now compulsory?
Education settings have now reopened and are subject to new guidance on how to manage risk and reduce transmission of COVID-19. In addition to schools, this guidance also applies 16-19 academies and special post-16 settings. This has recently been amended to reflect changes to guidance about shielding, face coverings and educational day visits (which can resume from 12 April 2021).
It’s important to note that this is not statutory guidance – but we expect all schools, colleges and other places of education will use the guidance to plan how they will deliver education.
The guidance for parents explains that all pupils should now be attending school unless they are;
- self-isolating because they:
- have symptoms or have had a positive test result
- live with someone who has symptoms or has tested positive and are a household contact
- are a close contact of someone who has coronavirus (COVID-19)
- they are one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.
See below information on shielding if your child is clinically extremely vulnerable.
From 8 March, school attendance is mandatory and parents’ duties under s.7 Education Act 1996 apply. This means that if your child is of compulsory school age and on the roll of a school, regular attendance is expected and action may be taken against you for unauthorised absences.
Additional catch-up provision due to missed education
What provision will school/college make to help a child/young person with SEND catch up?
This is going to be something to discuss with the school. We expect most settings to review their students following their return to school to try to identify gaps in learning and barriers to learning arising from their prolonged periods of absence.
To assist in supporting the return to school and catch up provision, grants are available for state-funded primary, secondary and special schools in the 2020-21 academic year.
The government previously stated that, with regards to children with “complex needs” it:
“strongly encourage[s] settings to spend this funding on catch up support to address their individual needs, including speech and language therapy, travel training, education psychologist time, or other small group and individual interventions. This could be either direct (i.e. the specialist spending time with the pupil) or indirect (i.e. the specialist spending time with school staff to design an intervention that the teacher/teaching assistant then delivers regularly)”
“Recovery premium” funding for schools has recently been announced.
Extra funding has also been provided to the 16 to 19 tuition fund to support small group tuition for 16 -19 year old students where learning has been disrupted.
What about repeating a year?
In law, education out of year (or repeating a year) is capable of being special educational provision ("SEP"). IPSEA has always recommended that it is specified in the EHC plan to ensure enforceability. Where a child or young person’s SEND requires such SEP, then the law says this must be provided.
Remember that considerations for children and young people with SEND include whether they may need more time to complete their studies. Many children and young people with SEND (particularly those undertaking post 16 education and training) may have missed a substantial proportion of their course and be unable to “catch up” what has been missed in 6-12 weeks.
In all cases, SEP is driven by what is required based on the evidence.
In all cases, the SEP required must be specified and quantified in the child/young person’s EHC plan
In all cases an EHC plan must be maintained as long as it is necessary to secure the child or young person’s SEP.
What about extending provision in a school setting for those aged 19 and over?
Where a LA decides that a young person would be best served by remaining in a school setting after they have turned 19 years of age, it can apply for a relaxation of the normal rules under the established Education and Skills Funding Agency process. Approval must be given by the Secretary of State to allow a young person aged 19 or over to remain at a school.
The government states that this may be necessary in “exceptional circumstances”. However, IPSEA has been advised previously that the process can be relatively straightforward and LAs may want to consider whether such application is necessary in light of the COVID-19 crisis and individual student’s circumstances.
EHC needs assessments and EHC plans
If my child has an EHC plan, does the LA still have a legal duty to deliver that provision?
Last year, the Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty. This meant that during the specified period of notices made under the Act (1 May to 31 July 2020) LAs needed to do whatever they reasonably could to put provision in place, but if they could not do so they would not necessarily be breaching the law.
Since 31 July 2020, however, the duties under s.42 and s.43 Children and Families Act 2014 have come back into full force. This means that LA’s have an absolute duty to secure the special educational provision specified in an EHC plan and settings named in EHC plans that are not wholly independent must admit the child/young person.
The guidance for specialist settings states that if it becomes difficult to secure provision that LAs, settings and health providers should:
"work with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of, and circumstances specific to, the child or young person, avoiding a ‘one size fits all’ approach."
The guidance, however, reiterates that there is no intention to downgrade the statutory duty of LAs under s.42 Children & Families Act 2014 at this time. It does say that the situation will kept under review.
However, if you have a complaint about the way the LA fulfilled its duties during the period the notices were in effect, the Local Government and Social Care Ombudsman (“LGSCO”) may be able to investigate – please see the section below on making a complaint or challenging a decision.
Do the LA still need to carry out EHC needs assessments?
IPSEA is aware of a number of LAs who indicated that they will not be carrying out any EHC needs assessments. Legally, this is not an option the government did not suspend the duty to consider requests for assessment or to conduct them. The guidance on EHC needs assessments and plans during the COVID-19 crisis made clear that requests for assessment were to continue to be considered.
Decisions about whether or not to assess continue to be made solely on the legal test. If a LA refuses to assess, then it must send out the statutory notification (along with notice of appeal rights and deadlines) to the parents or young person.
In IPSEA’s view it would not be acceptable for an LA to refuse to assess due to the fact the child or young person has been out of school. Time out of school may in fact make it more, rather than less, likely that a child or young person may require support through an EHC plan.
However, the deadlines which apply to LAs when considering EHC needs assessment requests were relaxed from 1 May 2020 to 24 September 2020. Where it was not reasonably practicable or impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they instead had to complete that step as soon as it was practicable for them to do so.
These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the “Amendment Regulations”), which amend the timescales in the SEN and Disability Regulations 2014. The changes do not apply to deadlines that fell before 1 May 2021 or after 25 September 2020. The Amendment Regulations can only be relied on for the period they were in force.
The guidance has been updated to reflect the fact that from 25 September 2020 the relaxations no longer apply and “any case that is in progress after that date to which the coronavirus exception has previously been applied will become subject to the usual statutory timescales (such as 6 weeks for needs assessments, 6 weeks for the provision of advice or information and 20 weeks for issue of a final plan)”.
The guidance makes clear that LAs, health commissioning bodies and others with a role in the process need to consider how best to progress the matter in a timely way from 25 September 2020. It emphasises the necessity of discussing this with parents and carers affected.
If practical barriers are raised by professionals asked to provide advice and information during an EHC needs assessments, the relevant professional body may have published guidance on how they can operate during the Coronavirus pandemic. For example, the British Psychological Society has developed specific Coronavirus resources for psychologists.
Will annual reviews still need to be carried out?
As above, the Amendment Regulations mean that annual reviews still need to be carried out but the usual deadlines were relaxed until 25 September 2020, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this.
From 25 September 2020, the relaxations no longer apply and LAs must conduct annual reviews in the usual way. You can find more information about annual reviews on our website, here.
IPSEA is aware that for many children and young people with SEND, there will have been changes to their needs in the period in which education was disrupted. In addition, the different ways re-opening has been undertaken will present different challenges for children and young people with SEND. If you feel there is an urgent need to amend the provision or placement in the child or young person’s EHC plan, speak to the school and the LA about this to see what review mechanisms could be put in place. You will find more information on our website, here.
Furthermore, LAs are required to conduct and conclude annual reviews in anticipation of phase transfer by the usual statutory deadlines. The guidance for specialist settings makes clear how important it is that annual reviews continue and the statutory deadlines are observed. It suggests that it may be appropriate to use electronic means to circulate information or to hold virtual meetings as long as parents/carers, children and young people are still able to participate in the process in a meaningful way.