Please note: this post has been partially superseded after the Secretary of State invoked the Notice to suspend legal duties to fulfil the provision in EHCPs.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
You sent over 200 questions in about your legal concerns over how the #CoronavirusLockdown was going to affect your child's EHCP and education. Yesterday we covered timescales, and the day before, Tribunals. Today, we're tackling who can attend school, if they should, the ramifications of not attending and if your child is at school and is excluded.
Who can attend school/college during COVID-19? What are the ramifications for not sending your child in?
Questions received include:
- My son has complex medical and physical needs and severe learning difficulties. How will his education needs be met? He attends a specialist, non-residential college.
- If schools will stay open to those with an EHCP does this also include nurseries and pre-schools? Are they obliged to do so?
- I am a SENCO and SALT. I look after 10 children with EHCPs. I also have a daughter with an EHCP who attends a special school. What provision are they required to put in place for her?
- My school has rescinded my youngest son’s place after originally offering me one during the outbreak (he has an EHC Plan). The reason they are giving is that his brothers are being cared for at home! Can they do this?
- I have two children with ASD. Their schools would not help with the EHCP process so they do not have them. I am a carer and my husband is a postman. Can they go to school?
- Can I send my child to school during the shutdown if he has an EHC Plan? Can the (mainstream) school refuse to allow him to come in?
- Are schools only open for key workers' children?
- My son has an EHCP for SEMH and attends a special school. He has a history of anxiety, OCD and school phobia. He has been refusing to attend school due to coronavirus anxiety. Can I get fined for non-attendance?
- Will keeping our children who have an EHCP at home have a negative impact on the future provision they receive?
- Do children with EHCPs who attend special school have to attend? Will there be penalties or a risk of the EHCP being discontinued? My child has diabetes type 1 and asthma.
- My daughter aged 12 has 22.5 hours of 1:1 support in her EHCP. I am planning to educate her at home from Monday. Could the LA refuse to fund the hours of 1:1 support when she returns to school if I do this?
- My child has an EHCP and has a 38-week residential placement Monday – Friday. I want her home, but need to make sure that the LA keep funding her placement and her place is held open.
- Will school still be able to exclude children with EHCPs during this period?
Who can currently attend school?
Schools closed their gates on Friday 20th March 2020 for an indefinite period to everybody except those ‘vulnerable’ children, or children of a ‘key worker’. Unhelpfully, however, no guidance was produced setting out exactly who would fall into these categories, prompting a cascade of questions to Special Needs Jungle from worried parents about whether their children would qualify.
After lots of speculation on 19th March the following list of who would be entitled to a place was published which confirmed:
“Vulnerable children include children who are supported by social care, those with safeguarding and welfare needs, including child in need plans, on child protection plans, ‘looked after’ children, young carers, disabled children and those with education, health and care (EHC) plans. We know that schools will also want to support other children facing social difficulties, and we will support head teachers to do so.
Parents whose work is critical to the COVID-19 response include those who work in health and social care and in other key sectors outlined below.”
As you will note, the definition of vulnerable children “includes”, according to the guidance, those who have a social worker and those children and young people up to the age of 25 with EHC Plans (I was asked a lot about particular age groups but I can confirm this applies across all children/young adults with an EHCP.)
The eight categories of critical/key workers included:
- Health and Social Care
- Education and Childcare
- Key Public Services
- Local and National Government
- Food and other Necessary Goods
- Public safety and National security
- Transport; and
- Utilities, Communication and Financial Services
Thus, if your child has an EHC Plan, or you are a critical/ keyworker (in line with the government guidelines) your child ‘can’ attend school and provision should also be made for them throughout the Easter holidays. Please note the word ‘can’ attend and not ‘must’.
This includes early years settings right up until post-16 colleges.
You can read more about childcare providers and local authorities' responsibilities during the Coronovirus pandemic here.
So you have a ‘vulnerable’ child or you are a key/critical worker. Should your child attend school in light of the current crisis?
The guidance states:
“Many parents working in these sectors may be able to ensure their child is kept at home. And every child who can be safely cared for at home should be.
Please, therefore, follow these key principles:
- If it is at all possible for children to be at home, then they should be.
- If a child needs specialist support, is vulnerable or has a parent who is a critical worker, then educational provision will be available for them.
- Parents should not rely for childcare upon those who are advised to be in the stringent social distancing category such as grandparents, friends, or family members with underlying conditions.
- Parents should also do everything they can to ensure children are not mixing socially in a way which can continue to spread the virus. They should observe the same social distancing principles as adults.
- Residential special schools, boarding schools and special settings continue to care for children wherever possible.”
It is likely a result of further questions asked, which forced the government to issue further ‘guidance on vulnerable children and young people’ on 22nd March 2020 providing more clarity. You can find the guidance here.
What does the guidance on vulnerable children and young people tell us?
The important things this further guidance confirms that was not clear in the original guidance issued is that:
- Children and young people with EHC Plans will not be automatically eligible for a school or college place. Their eligibility will be subject to a risk assessment by their setting in conjunction with LAs and their parents to determine whether their needs can be met at home.
- I would stress at this point that it is very important for parents, however hard it may be, to be realistic about whether you are able to meet your child’s special educational needs 24 hours a day for an indefinite time. If you are, fantastic and wherever possible, you should keep them at home. However, if you need to send your child to school because you do not think you could manage with the severity of their needs at home, this is nothing to be ashamed of.
- This risk assessment does not allow a headteacher to simply close a school and not provide any alternative provision for children in these two categories. An individual risk assessment should be completed for every case.
- (While we know this is not happening up and down the country) the government did also ask that all schools and early years settings should remain open for children of critical workers and vulnerable children wherever possible. If your child’s normal school has however shut and provision needs to be made for your child, it is possible for your child to attend another school in your area (which might not be your child’s normal school but would be able to provide support to them).
- For children who are awaiting an EHC Plan or the outcome of a tribunal appeal in respect of one, and/or who are on the brink of receiving social care support, schools will have the discretion to carry out a risk assessment and provide support, but will not be required to do so.
This leaves a lot of discretion in the hands of the child or young person's setting, together with a considerable amount of risk-assessing to be done in a very short period of time. That's without taking into account the work involved for settings in deciding if parents of non-vulnerable children come within the definition of key/critical workers.
Children with EHC plans are therefore likely to fall into two categories:
- Those who would be at significant risk, i.e. could not be supported at home (e.g. profound and multiple learning difficulties; receiving significant levels of personal care support in the setting) – who should go to school; and
- Those whose needs can be met at home, i.e. not receiving personal care in their setting or whose limited needs for personal care can be met in their home.
What are the ramifications of non-attendance?
So, parents whose child technically could have a place but they prefer to keep them home, had further questions: Would they be penalised financially or by their child losing future provision as a result? No. The Government is in fact encouraging those parents of children in the eligible categories to allow them to stay at home, if they can.
The guidance also confirms that local authorities will need to use their “reasonable endeavours” to ensure provision is available across the local area. Parents who consent to changes to, or reductions in, provision during the outbreak, will not be considered to have agreed to a permanent amendment of the EHC Plan. This is particularly important for those parents worried they would lose provision in Section F of their EHC Plans when their child returns to school.
Similarly, fines will not be issued for non-attendance. Funding for all schools and FE colleges will be maintained and not reduced because of lower attendance
Thus rest assured if you are keeping your child at home because it is safer and you are able to do so, you do not need to panic and being penalised for doing so.
The DfE will also put in place a new process allowing reimbursement of exceptional costs faced by schools as a result of COVID-19; details to be published shortly.
What about exclusions?
Finally, in addition to queries of attendance and non-attendance, concerns were also made as to whether children would still be able to be excluded during this time.
At the moment the guidance does not deal with exclusions. The power to exclude has not been disapplied by law. This is probably because most children are not in school, so it hadn’t been contemplated that exclusions would need to be addressed.
Until such point, any potential exclusion would still need to be non-discriminatory, reasonable, fair and proportionate. It would likely be very difficult to satisfy those requirements in the current situation the country is in. Schools must have a legitimate aim to keep children or staff safe. They must also have a lawful reason to exclude, but the proportionality of any exclusion will differ hugely in the current climate. It should, therefore, be reserved as a very last resort and instead, alternatives to exclusions will be crucial in this time of national emergency.
Look out for part four coming soon- What will/won’t my child receive under their EHC Plan while they are out of school? 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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