Coronavirus and SEND law: Your Questions Answered (part two – Timescales)

Please note: All right previously suspended under the Coronavirus Act have now been restored, as of September 2020. These have not been introduced in subsequent lockdowns

On Tuesday it was all about how the SEND Tribunal is affected by the Coronavirus outbreak and temporary changes to the law on Education, Health and Care plans (EHCPs). Today, we're looking at TIMESCALES

Questions received about timescales include:

  • Our school is about to apply for an EHCP for our year 6 daughter to hopefully have 1:1 support in place for transition to secondary school in September. Are there delays? Are staff still working?
  • I have recently put an EHC needs request in for my daughter. Can the local authority relax the timescales with regards to making decisions and carrying out the assessment?
  • My son has been accepted for assessment for his EHCP but what happens if the school is closed? The council are expecting to have all reports in from various professionals by April 16th
  • Will local authorities be required to complete statutory work…legal timeframes etc EHCP’s during this time?
  • My son has just received his first draft EHCP. Where do I stand legally in asking for an extension to name a school? Due to COVID-19 I am unable to tour schools so cannot pick one to name yet?
  • We are due a meeting to review the first draft of my daughter’s EHCP following assessment in January. I am worried that it will not happen due to the school closing. Can I ask to do it via correspondence? 
  • We recently won our tribunal re the contents of an EHCP and are due the amended EHCP by 20th March 2020. Our local authority (LA) have always breached statutory timeframes. What do we do if they breach in light of COVID-19?
  • We had a final amended EHCP sent a couple of weeks ago which was incorrect with the post-16 placement for our daughter. After informing the Council and the School, I am still waiting to hear – what next?
  • My son is due to transfer to a post 19 placement in September 2020. With the new bill being proposed could the final EHCP now be delayed and no placement named?
  • Still awaiting paperwork after EHCP annual review. It took place in January. Where do we stand in such situations?
  • What happens to my annual review?

Coronavirus Bill

As expected, lots of the questions submitted focused on EHC Needs Assessment requests that had either just been submitted or agreed, and whether the local authority could now disregard the timescales in light of the proposed new legislation in the Coronavirus Bill

It must be borne in mind that the Coronavirus Bill remains in draft format at the moment and things are changing quite rapidly as legislation and guidance are refined and as the wider picture in terms of public health becomes better understood. The information in this blog is correct as of 25th March 2020. 

The latest information on the Bill is that it completed all its stages through the House of Commons in one day after the Prime Minister confirmed that the bill, once enacted, would be reviewed every six months (although could be in place for two years). The current status of the Bill can be found here.

Parents and Young People in the process of obtaining an EHC Plan

As it stands today, the Children and Families Act 2014 and The Special Educational Needs and Disability Regulations 2014 that set out the timescales for the LA to follow remain unchanged in light of the Coronavirus bill. This means that the legal timescales must still be followed. 

Thus parents and institutions will still be able to request EHC needs assessments, which can still be carried out in the normal way. Decisions should still be issued on time. For new EHC Plans, or if you are awaiting your final EHC Plan, those processes will continue, and legally, the same deadlines will continue to apply. If those deadlines are missed by the local authority, they can still be challenged by way of Judicial Review.

There is nothing to prevent new requests for EHC needs assessments to be made. Parents can submit their own request for an EHC needs assessment rather than requesting that the school do so. No particular forms need to be filled in for a legally valid request for an EHC needs assessment to be made.

It's tough for everyone - LA officers included.

The only word of caution I would provide is understandably everybody is in a difficult position at the moment. Many people have to work from home for the first time, looking after children and trying to make it work and that includes LA officers.

With that in mind, I suggest you give some grace to the absolute deadlines, but this does not mean local authorities can flout deadlines or do nothing. I would suggest a one-two week grace period would be sufficient and if you still do not receive anything from the LA, at that point you should consider the sending of a pre-action protocol letter.

The government has hinted in their vulnerable children guidance that they are considering whether to introduce legislation to amend the timescales for EHC plan processes, presumably from needs assessments to issue of the plan. The guidance states: 

We are also considering whether regulations need to be amended in order to allow greater flexibility on the timescales relating to the EHC plan process”

but as of yet, nothing has been issued so we continue with the clear legal timeframes as set out above. Please note, as I said, this situation may change after the Act is passed and we will update this - so come back in time.

Annual Reviews of Special Educational Needs

The only caveat to the good news of the timescales remaining the same is that one timescale does appear to have changed as a result of the Coronavirus Bill. If your child has an annual review in the near future, then it is likely that these will be suspended or postponed until further notice. This is because the duty to carry out an annual review under section 44(1) CFA 2014 may be disapplied in the event of a temporary continuity order.

It is not guaranteed, and I am aware that some local authorities and schools are being very creative and holding annual reviews by video conferencing to allow their caseloads not to mount during this crisis, so you should check with your individual school and LA. However, if the LA/school decide to postpone and do not want to hold the review remotely, you cannot force them to do so.  This is, however, beneficial if you are happy with the support your child is receiving as set out in their EHCP, as this will continue until any such time it is reviewed.

Appeals timescales

Appeals in respect of refusals to assess, refusals to issue, and against the content of issued EHCPs. can also still be lodged with the First-tier Tribunal. The FTT has already put measures in place to attempt business as usual. It is holding case management hearings and appeals by telephone and video link. Early indications are that this is a viable way of conducting at least some final hearings.

We do know from the guidance of the First Tier Tribunal dated 19th March 2020, that there is a slight change. Any new appeals are now going to be listed on a 20-week timetable (unless you have a phase transfer case, which will be 12-14 weeks). This reverts back to the old Tribunal timetable prior to the Children and Families Act 2014. 

My personal opinion is that while this is longer, it's a step in the right direction. It will help avoid the mass appeals at the tribunal, resulting in frequent hearing vacations, because there are not enough judges to hear the appeals. It also allows parents more time to gather their own evidence and ensure their case is as strong as possible, before presenting it to the Tribunal. 

All in all, in terms of timescales, parents of children with special needs remain protected which is very good news. It will allow cases to continue through the often hard-fought EHCP process. If any such legislation is bought out to amend any of the timescales set out above, I will duly update this blog for you.

Next time...

Look out for part three which covers who can attend school, if they should, the ramifications of not attending and exclusions. Make sure to sign up for new post alerts and if you can, donate to help SNJ keep up its great work!

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Hayley Mason

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