Please note: this post has been partially superseded after the Secretary of State invoked the Notice to suspend legal duties to fulfil the provision in EHCPs. They are replaced with a "reasonable endeavours" directive. You can read about this in this post. This is still the position. until at least the end of June 2020 when the Notice must again be reviewed. Other aspects remain the same as in this post, such as the change to timescales regulations
This is the last group of The the 200+ questions we received. These answers will be the most important for the next weeks or months ahead. What does your child’s hard-won EHCP mean now? What can it provide during the #CoronavirusLockdown and social distancing?
I hope you can recognise issues below similar to your own situation. In these uncertain times, sharing information and making parents lives even a tiny bit easier is an essential part of our work.
Questions received include:
- In light of the government announcement about indefinite school closures in England what provision (if any) are schools to provide children with EHCPs? My son has dedicated 1:1 TA support.
- How can we manage/teach our learning at home without our EHCP allocated TA support? School is setting virtual work but we are struggling.
- My daughter is 18 with an EHC Plan. She has a mentor, SALT sessions and English lessons in college, she also receives a 1:1. Should she be seeing these people outside of college or by Skype if college closes?
- If schools close, can I deliver speech and language therapy sessions to children on my caseload with EHCP’s via video link? Will this be reimbursed in the same way as 1:1 school sessions?
- When ABA programmes are funded through an EHCP, will the funding still be provided so the provision can be delivered through home ABA sessions when schools close?
- How are government/LAs/schools proposing to meet the provision in Section F of children’s EHCPs?
- My daughter is out of school, what happens to the therapies in her EHCP?
- For us on personal budgets, when schools close will the LA still be legally obligated to fund our 1:1 programme when I am running academics and EHCP targets with his 1:1 from the home setting?
- How does it work when schools close regarding EHCP stated support e.g. OT and SALT? Do therapists have a legal duty to continue to work with kids over Skype?
- My child just received a finalised EHCP naming a SEN School for September 2020. At the moment LA have granted 1:1 as his current school struggles. Can they refuse the SEN school named from September?
The Coronavirus Act
It is important to note that the Coronavirus Bill, has now been passed and is now Legislation under the Coronavirus Act 2020. You can find the whole act here
Despite substantial lobbying, the Bill went through Parliament without any amendments. As a result, the Coronavirus Act 2020 now provides for the possibility of a temporary relaxation of duties on local authorities. The relevant part for our purposes is Schedule 17, part 1, “Notices temporarily removing or relaxing statutory provisions etc: England” - however it isn’t all doom and gloom!
What does this mean for you?
- Most importantly, EHC Plans will remain in force.
- Under Section 42 of the Children and Families Act (CFA) 2014 as it currently stands, there is an absolute duty upon local authorities to secure and deliver special educational provision contained within an EHC Plan.
However, under the Coronavirus Act 2020, the Secretary of State has the power to modify this requirement so instead rather than an absolute duty, Local Authorities are able to use ‘reasonable endeavours’ to deliver the provision.
- The legislation also gives the Secretary of State the power to disapply Section 43 CFA 2014 – which requires a school named in Section I of an EHC plan to admit a child/young person as a pupil.
- The duty to undertake annual reviews of EHCP’s under section 44 CFA 2014 may also be put on hold.
Despite the guidance currently available from the Government (causing mass panic for parents and allowing local authorities to think they can simply suspend the EHCP process, which is unlawful) it is important to note that the measures stated above will not apply automatically.
In order for any of these situations to come into force, Schedule 17 of the Act has created a power for the Secretary of State to issue a notice disapplying or modifying the existing statutory provisions (listed above) for up to one month at a time, but there can be repeated notices.
When issuing such notice, the Secretary of State must take reasonable steps to bring the notice to the attention of those likely to be affected. I would assume it would be listed on the Department for Education website. The notice must give the reasons why the issuing of the notice is considered necessary and proportionate.The reasons must relate to the incidence or transmission of coronavirus.
What seems to have been misinterpreted however is until that time – the duty on a local authority to secure provision in an EHC Plan remains unchanged. I.e. LAs still have to provide provision in Section F of an EHC Plan.
So, if a notice is issued what happens then?
Even when a Notice is issued, this does not mean that local authorities can simply do nothing. What it means is that the duty under section 42 is to be treated as discharged if the LA has used ‘reasonable endeavours’ to discharge the duty.
In reality this will involve looking at creative options to provide for delivery. They cannot simply refuse to provide anything because the school is shut for example, that is unlawful.
What can I ask for? Be flexible – talk to your LA
The current public health crisis will leave no aspects of our lives untouched. Most obvious, the care and support which children/young people ordinarily receive will be massively disrupted and I can understand whole-heartedly why this worries parents.
It remains that we are in an unprecedented situation and nobody has all the answers. The reality as we go through the coming weeks and months, is that services may close, 1:1s may need to self-isolate or become unwell. This national emergency calls for open minds and collaboration about how we can creatively deliver provision more than ever, to ensure children/young people with special educational needs can continue to get the care and support they need.
That said, what you are asking for does have to be practically available in the current crisis or you are setting yourself up for disappointment.
Thus, practically if you:
- have a speech and language therapist who is willing to deliver sessions via remote access (Skype, Zoom or some other means) and this session is likely to be effective, suggest it;
- Similarly, with OT or physio - can they video link to your home and talk you, as parents, through some easy to follow exercises that you could do with your child to avoid them becoming overloaded;
- Parents that are lucky enough to be trained ABA providers, can you continue the programme at home, or can your ABA staff continue to perform ABA in the home and directly invoice the LA;
- And any other creative means of providing support remotely. All options should be explored.
- First of all, if it is not possible to put support in place for your child at the moment because you are unwell, self-isolating or other reasons, be kind to yourself. This is a marathon, not a race and all parents are currently muddling through the situation as best they can.
- If you do wish to try to arrange the support in your child/young person’s EHCP, I would advise you to put together a plan of what you can practically and safely put in place, while your child is accessing limited schooling or at home.
- If is any cost involved, put it to your LA. This is for no other reason than I don’t want parents to pay for support and your LA to disagree to fund it and you be left out of pocket.
- We must appreciate that at this time councils are under an unprecedented strain and their contact may not be instant, but they should be aware of their legal duty to continue to deliver provision in an EHC Plan and be working creatively with parents how best to do that as quickly as possible.
- Only by discussing the situation with parents and exploring the options available to them will LAs be able to satisfy the requirement that they have performed ‘all reasonable endeavours’ when the Notice comes in. A blanket refusal or disregard for their duties will not suffice.
We'd like to say aN ENORMOUS thank you to Hayley for her time writing all these posts - while still working from home helping her clients. It's been a mammoth task, and we are very grateful for this brilliant effort. Thank you Hayley! Tania & Renata
- SNJ's latest Coronavirus & SEND information- official info and helpful resources
- Coronavirus: School, attendance and exclusions. Your legal questions answered, part 3
- Coronavirus and SEND law: Your Questions Answered (part two – Timescales)
- Coronavirus and SEND law: Your questions answered (part one - Tribunals) Hayley Mason
- Care in a time of Coronavirus: Using direct payments to pay family members for care -Steve Broach
- Steve Broach, Public Law Barrister on the Coronavirus Bill’s implications for disabled children
- The curious decision to keep disabled children at school despite the Coronavirus crisis -Tania Tirraoro
- Calming Coronavirus anxiety in children (and everyone else)- Angela Kelly
- Coronavirus Act
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