Coronavirus: EHCP laws temporarily “relaxed” as LAs told to just do their best

and SEN Lawyer, Hayley Mason, SNJ Legal Columnist

EHCP laws relaxed as LAs
told to just do their best in 
response to coronavirus

The Government yesterday announced temporary amendments to the SEND regulations around legal duties and timescales for Education, Health and Care Plans. They are:

  1. A notice from the Secretary of State for Education issued under the Coronavirus Act 2020 to modify section 42 of the Children and Families Act 2014 This temporarily relaxes the legal duty on local authorities or health commissioning bodies (CCGs) to secure or arrange the provision set out in an Education, Health and Care (EHC) Plan down to a duty to use ‘reasonable endeavours’.
  2. Introduction of The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020. This temporarily amends four sets of Regulations that specify legal timescales applying to LAs, CCGs and others, mainly around processes relating to EHC needs assessments and plans.
  3. The Notice is in force until the end of May, and May be extended. The changes to the regulations will be in force from 1st May to 25th September 2020 and they will be kept under review.
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Reasonable Endeavours

The notice (1. above) does not mean LAs or health bodies can just forget about all their legal duties under section 42. rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that they must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances, during the notice period.

This means that for some, there may be little change. However, for others, (and this is a big concern as it's more likely to be those children with more complex needs), the impact of coronavirus may mean their hard-won provision may be (temporarily) less. This will be legal, as long as the body obliged to make the provision can say it's tried as hard as it can. Once the notice expires or is cancelled, providers will all need to ensure everything specified in an EHCP is put/put back into place.

Of course in reality, the vast majority of children and young people with EHCPs are already getting nowhere near the provision stated in their EHCPs. Most are not in school, even if there is technically a place for them. Even if they were in school, the provision available would be nothing like what they should be getting. In fact, while some schools have really gone above and beyond to deliver remote provision, other children have barely heard from their schools (check out our distance learning resources here)

When can timescales be "relaxed"

"Where it is not reasonably practicable or is impractical to meet that time limit for a reason relating to the incidence or transmission of coronavirus (COVID-19), the specific time limit (such as to issue a plan to someone eligible for one within 20 weeks of the initial request) in the regulations being amended will not apply.

Instead, the local authority or other body to whom that time limit applies will have to complete the process as soon as reasonably practicable or in line with any other timing requirement in any of the regulations being amended"

Guidance: Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)

It is important to note that the changes to the regulations governing specific timescales may be modified, on a case by case basis, "for a reason relating to the transmission or incidence of coronavirus (COVID-19)" if it is (depending on the regulation) "not reasonably practicable, or impractical", for an LA, CCG or others to conclude the process at hand. When that is the case the temporary rules (depending on the regulation in question) are:

  • for the body to discharge that duty ‘as soon as reasonably practicable’
  • to discharge that duty ‘as soon as practicable’
  • to respond in a timely manner in other instances, when cooperation between different bodies is needed to complete an EHC needs assessment.
Themes in this guidance
Throughout this guidance we have sought to emphasise:  it is only some aspects of the law on EHC needs assessments and plans that have changed temporarily; and where this has happened, the law has been modified, not disapplied. The duties in law over EHC needs assessments and plans have not been ‘turned off’
the ongoing importance of co-production with children and young people with SEND and their parents
that the impact of coronavirus (COVID-19) may mean that the process and provision in place previously may for the time being need to change
how important it is, in identifying the best way forward and giving the families clarity about what is happening, for there to be effective and timely communication between:
local authorities (SEND and social care services) and health commissioning bodies
families of those with SEND
all those others involved in the processes for EHC needs assessments and plans, such as education settings and other health professionals
From the guidance

Letter from Ministers

Ministers, it seems, are now well aware of the tendency of councils to reach for the lowest common denominator when it comes to SEND. SEND Minister, Vicky Ford and Care Minister, Helen Whately issued a letter about the changes, emphasising their temporary nature and how important it was for LAs to include families in decision-making processes.

"We know that as parents and others involved in the care of this vulnerable group, your primary concern is their health and wellbeing. As the Ministers for SEND and Care, we share those concerns and want to reassure you that these changes are temporary and all other requirements of the EHC process remain unchanged. The changes are designed to balance the needs of children and young people with the ability of local authorities and health services to respond to the outbreak.

"Our aim is that, as far as practicable during this difficult period, EHC processes continue so that children and young people still get help and support whilst accepting that this may have to be done differently. We expect commissioning bodies – and the services they commission – to maintain education, health and care provision for vulnerable children, and also to extend extra support, where possible, to families in most need – recognising that home isolation is extremely hard for many children and young people with SEND and their families.

"In addition, we want to emphasise that co-production, partnership and communication remain critical."

Letter from SEND Minister, Vicky Ford and Care Minister, Helen Whately about the changes

Okay, so what does all this mean for you? Hayley Mason explains

Our legal columnist, SEND lawyer, Hayley Mason, has digested the changes and recorded this update to help explain it. She offers some reassurance and warns local authorities this is not a licence to do nothing. Subtitles are included and a transcript can be downloaded as a pdf here.

The importance of working with parents

At this challenging time, it is even more important that local authorities, health services, education settings and all those involved in the processes relating to EHC needs assessments and plans work with families to identify appropriate ways forward. It is a fundamental principle of the SEND system that children and young people with SEND and their parents need to be fully involved in decisions about their support. Co-production and effective communication remain key, both at the strategic level and in relation to individual cases. Parent carer forums have an important role, working with local authorities and health commissioning bodies, to gather and feed in parents’ views on what can realistically be provided to children and young people in their area when the usual ways of working are under such strain. Local authorities, health services and the other bodies involved in the processes relating to EHC needs assessments and plans should communicate regularly with the families of those children and young people with EHC plans, or who are being assessed for plans or who apply for an EHC needs assessment. Where the changes in the law affect what families experience, they need clarity as to: what provision will be secured for each child and young person and the reason for any difference from what is specified in the EHC plan when decisions will be made as part of the various processes relating to EHC needs assessments and plans

The guidance itself reiterates the importance of working with parents - although as many barely did this before the pandemic, it's hard to believe they're going to suddenly start now. It instructs LAs, CCGs et al to "communicate regularly with the families of those children and young people with EHC plans, or who are being assessed for plans or who apply for an EHC needs assessment." The guidance says that where changes affect the experience of families (from the "normal process), there must be clear information as to:

  • what provision will be secured for each child and young person and the reason for any difference from what is specified in the EHC plan
  • when decisions will be made as part of the various processes relating to EHC needs assessments and plans

But still, most things stay the same

In summary:

  • Key elements of the processes relating to EHC needs assessments and plans are unchanged.
  • These are temporary changes to statutory timescales for processes relating to EHC needs assessments and plans.
  • All of the other requirements of the EHC needs assessments and plan processes remain unchanged.
  • A local authority must still consider requests for a new EHC needs assessment or a re-assessment.
  • Where the local authority decides to carry out an EHC needs assessment, it must still secure all of the required advice and information in order to be able to issue a plan.
  • Section 19 of the Children and Families Act 2014, which requires local authorities to have regard to the views and wishes of a child, the child’s parent or a young person when exercising its SEND functions under the Act, remains in force.
  • There is no change to giving parents or the young person at least 15 days to give views and make representations on the content of a draft plan.
  • The provision set out in the final plan should be in line with the statutory requirements for any EHCP and not be limited because of the circumstances of coronavirus (COVID-19).
  • Reviews and re-assessments of EHC plans must still take place (although there can in some circumstances be flexibility over the timing of an annual review)
  • Decisions must still be based on the individual needs, provision and outcomes for the child or young person.
  • Local authorities must not apply blanket approaches in relation to EHC needs assessments or plans, processes and decision-making.
  • Annual review requirements remain in place although they may need to take a different form. The timings are, as above, in the timescales section.

Potential legal challenge

There may well be legal challenges to these changes, that have been made with no notice, without consultation or an impact assessment on the effects in those concerned - disabled and vulnerable children. If this happens, we’ll bring you more information as soon as possible. A lot can happen in a month, as we all know

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Schools reopening

Meanwhile, Prime Minister Boris Johnson, has pledged to set out next week a ‘comprehensive’ plan for reopening schools. Let's all look forward to that then, shall we?

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