*August update: EHCPs are now back in full force and all children are expected back in school in September. However, some schools are still using stringent risk assessments and updated ‘behaviour policies’ to limit attendance. This post still explains the risk assessment guidance. *
Has your child gone back to school yet? If they have an EHCP, they should have had a place available to them throughout the pandemic, but we know that most have remained at home because their parents felt it was safer to do so.
But now, if your child or young person has an EHCP, their school or college should be carrying out updated risk assessments with a view to them returning. The guidance for this is here
The risk assessment is supposed to be co-produced with the family. You should be clearly informed that the conversation you are having is a risk assessment for returning to school. It shouldn't be a quick chat or tick-box exercise before telling you that they can't accommodate your child at this time so they have to stay home. The RA is supposed to be for the child's safety, not the school's convenience.
Now, many, many schools are doing exactly the right thing by their SEND cohort and have done so all along, including providing imaginative home learning and support. Thank you, amazing teachers, for all your hard work.
But there's always one isn't there? Or rather a lot more than one...
Of course, there's a reason for writing about the risk assessment issue because I've heard a few horror stories recently, including one parent who was told their child could attend, but they would be in isolation because they couldn't social distance. Early returns from our survey show many children haven't had a risk assessment at all, or parents do not know if they have or haven't had one. This isn't acceptable.
Just to check it's still an issue, I did a quick and totally unscientific straw poll on our SNJ Facebook group. While there was one comment that their child's mainstream school had done a terrific job, most comments were that either they hadn't had one at all or realised they'd had one at the time. Here are a few of the comments...
"I was told the outcome of the risk assessment. Not told when it was happening. Not invited to contribute. Not asked my view at any time. (I disagree with the outcome. Totally unclear what I can do about it.) My daughter has been offered a return to school of four hours a week - two hours, two days a week - for the foreseeable future. This limitation is because they say they can't provide personal care to children in school. This appears to be clear discrimination."
"Only been involved in one. Have three kids with EHCP and one on SEN support...but..if they have been done [for the] other three provisions I was not made aware or involved at all in the process. I did ask at residential special school about it but was told it was for the county to do it! As I'm in touch with this SENDO I'm not sure they're doing it either. Only placement that involved me was a private mainstream school but nothing has come from it and I never got to see the report"
"Had one and was involved. Disagreed and it was changed."
"Son's [placement] emailed me some questions to answer about how he would react to the change... Other child in SEN school didn’t get asked anything. They have drawn up the risk assessment for the school with no parental involvement, which is on their website."
"Tick box exercise. No wasn't told the outcome."
"I have yet to hear about a family who was aware of one being done… seems to have been at best a quick chat from school (but without being clear on the purpose of the chat)."
"I’ve just found out that one was done. No clue when and how and who attended?"
"Our daughter is in mainstream. Her SENCO phoned me to talk through her risk assessment for returning and to see if we were happy with it and if there was anything we wanted to add. Fabulous school."
"No risk assessment that I was aware of, just told that the council had said no return to school for children who were shielding even though we know the risk is less than when she attended before lockdown and wanted her to return because of various reasons. The school was chasing us for the return to school date for weeks and we told them after 12 weeks was up as per letter but then turned round and told blanket no"
"I'm still waiting for the initial risk assessment. Nothing been mentioned."
What does the Government guidance say?
While it does seem that decisions in guidance documents are changed more often than pants (sometimes because some of the decisions have actually been pants), there is a lot of it about. Guidance, that is, not pants. Most DfE officials working from home probably aren't even wearing pants... But anyway...
These are a couple of relevant paragraphs to peruse from "Risk assessment guidance for settings managing children and young people with an education, health and care (EHC) plan during the coronavirus (COVID-19) outbreak."
Throughout the coronavirus (COVID-19) outbreak, educational settings have been asked to ensure that vulnerable children and young people can attend where appropriate, including those children and young people who have an EHC plan, and for whom it is determined, following a risk assessment, that their needs can be as safely or more safely met in the educational environment. As settings prepare for wider opening, they should continue to offer places to vulnerable children and young people and should look to bring back more children and young people with EHC plans in these target year groups. Their return should be informed by their risk assessments, to help educational settings and local authorities ensure that the right support is in place for them to come back....
DfE Risk assessment guidance for settings managing children and young people with an education, health and care (EHC) plan during the coronavirus (COVID-19) outbreak.
...When updating risk assessments, it is important to take into account that some parents and carers may be unable to sustain the levels of care and support that their children need for a long period of time. As part of updating risk assessments, we ask local authorities and educational settings to be mindful of, for example, access to respite and short breaks services, the loss of care from extended family, and the risks to health of caring week round for children and young people with complex needs.
So, the balance must be struck, bearing in mind the safety of the child and the difficulties experienced by their families from such an extended and unrelenting time caring, most often without any external support. Yes, guess what, children with disabilities are hard work for their families. Often delightful, always much loved but hard work, nevertheless. Parents are exhausted and are facing another six weeks soon with little support over summer. Only they would usually have been able to rely on out-of-school specialist respite that may not now be available.
So schools, please do your utmost to ensure they can return. Don't see the relaxation of EHCP duties as a "get out of jail free" card. You still have to provide what is reasonable. Ticking a box to say they can't be supported and then forgetting about them until September is definitely not reasonable.
An update... schools should NOT seek medical evidence
The day after this post was published, the DfE has updated guidance (I hesitate to say as a result of the post, but who knows?) The new addition says educational settings should not seek medical evidence except to help them to support the child or young person more generally.
It continues to say if a family whose child is clinically extremely vulnerable and has been advised to shield, to still go to school, educational settings should not use their vulnerability as a reason to refuse a place if they would otherwise have readmitted them.
Some children with specific health conditions may have been identified as being at very high risk of severe illness (clinically extremely vulnerable) if they catch coronavirus (COVID-19) and have received a personal letter advising them to shield. Currently, these children are advised to stay at home and not to attend school. This is voluntary and is for the protection of the child or young person. This also applies, rarely, if the child lives in a household with another family member who is shielding, and where the child is unable to practise robust social distancing. However, shielding advice will change for both adults and children as the number of cases of coronavirus (COVID-19) continues to decline in our communities. Please see the latest guidance on shielding.
Children with some underlying health conditions have been advised to take particular care to follow social distancing and hand and respiratory hygiene advice (see the guidance on those considered clinically vulnerable. However, we know that clinical illness for children who might become infected with coronavirus (COVID-19) is generally much milder. Children in the clinically vulnerable group should, therefore, continue to attend or return to school.
Where clinically extremely vulnerable children do not attend school or other educational settings, the setting should continue to ensure that these children and young people continue to engage in learning as far as possible, for example through remote education and that an increasing focus is put on preparing the way for their return.Supporting children and young people with SEND as schools and colleges prepare for wider opening
What about the EHCP money?
While in schools, classes of 30 pupils are split into two, with the teaching assistant managing half, you might also want to ask who is funding that TA. For example, if a particular child ordinarily has a one-to-one teaching assistant who is funded by their EHCP, their parent may want to make an enquiry if that TA isn't providing one-to-one (or whatever level of provision they are paid for) to the child online, or in school in a small class. The TA shouldn't be considered a convenience for the school if they were hired to provide support for a specific pupil.
It is not acceptable if the TA is simply redeployed to cover a class that doesn't include that child at all. If you are a school leader who is doing this, please ask yourself if an inspector or parent would think this is reasonable. Convenient, yes, but for whom?
What about teachers' safety?
While schools may be concerned about children who cannot understand social distancing (for as long as it exists) the DfE has published safeguarding guidance, and I draw your attention to this:
How should I care for children who regularly spit or require physical contact?
If non-symptomatic children present behaviours which may increase the risk of droplet transmission (such as biting, licking, kissing or spitting) or require care that cannot be provided without close hands-on contact, they should continue to receive care in the same way, including any existing routine use of PPE.
In these circumstances, to reduce the risk of coronavirus (COVID-19) transmission, no additional PPE is necessary as these are non-symptomatic children in a non-healthcare setting and so the risk of viral transmission is very low. However, additional space and frequent cleaning of surfaces, objects and toys will be required. Cleaning arrangements should be increased in all settings, with a specific focus on surfaces which are touched a lot....
...How should I care for young children or children with special educational needs who do not understand why they must stay apart or who ignore distancing guidelines?
Young children and children with special educational needs may not be able to understand the need for social distancing and may also seek close interaction with their peers or adults to provide reassurance at a period of disruption to their routines. It is imperative that education, childcare and children’s social care settings conduct risk assessments around managing groups of children within the setting. This should include limiting the number of children in each group and reducing this to provide more space in each classroom or learning area. As far as possible, small groups of children should be supported by consistent staffing, and groups should remain as consistent as possible throughout the outbreak.Safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE)
Note, it doesn't say to just tell them to stay at home or in a room by themselves. Again, this RA is for the safety of the child, not the convenience of the school.
What can I do if I disagree with the risk assessment?
Our interview with public law barrister Steve Broach, in our SNJ In Conversation series, dealt with just this issue. Steve explains that the risk assessment isn't a legal process. The question is, where is the least risk? Ultimately the parent should decide, not the school. I've summarised what Steve says below:
If the school is refusing to thave the child back if they have an EHCP, is it complying with s43 of the Children and Families Act (CFA), which requires them to admit the young person. Additionally, are they making reasonable adjustments under the Equalities Act 2010, and are they acting reasonably?
If the refusal grounds are to do wider public safety, then the school must still explain how they are complying with their duty under s43 in that context.
If the school is claiming it has staff shortages, or there is no availability for one-to-one, for example, the local authority is where the legal remedy lies. However, there is also the s66 duty in the CFA, which is that they must use their best endeavours to secure special education provision for all children, whether or not they have a plan. This means school governors or academy proprietors can be challenged on the basis that they haven't used their best endeavours to make provision available.
Most parents I know are very reasonable; they know what is and isn't possible at the moment and are happy to accept that while the exact provision stated may not be available, whatever they can provide may be sufficient in the short term. So if it really is best they are at home, parents insist on some kind of remote provision so the child isn't left with nothing while other children are at school.
"The starting point is what is in the plan and the LA, under the guidance, has to explain why it can't do what's in the plan and what else it's going to do. So it has to give a reasoned explanation to the family as to what's being done that is less than in the plan, but is still reasonable. I definitely would encourage families not to be put off by being told we only have to do what's reasonable - that might be quite a lot and in fact, it might be everything."Steve Broach in his interview for SNJ In Conversation
You can find the whole interview on our new SNJ In Conversation page. The risk assessment answer is around 25'
What are my legal options?
As to what you can do legally, the answer, at present. is judicial review. You should first communicate with the school, ask them to reconsider and explain what it is that you and your child need. You can't currently go to the Local Government Ombudsman as it isn't taking new cases during the pandemic, which is something of a travesty.
But JR isn't an easy thing to do, especially if you don't have the money to spare. If you're lucky, you can try for legal aid as a litigation friend on behalf of your child. Is it worth it for the next few weeks? That's for your to decide.
So, speak to the school, explain what you want and ask why they can't do it. If they won't budge, and you can get one, you can consider a pre-action protocol letter from a solicitor. Legal charity SOSSEN also offers a fixed price service for a letter before action.
Is it worth the money and the time? If it's all going to get back to normal in September you might decide it isn't, but at present, it's anyone's guess.
If your child is very disadvantaged financially, or you are reading this as a young person in care, you should at least listen to this section of the interview, towards the end of the section, as Steve suggests some possible options.
In other SEND news
While many of you follow us on social media, that's not true of everyone who relies on SNJ to get their updates about SEND. So I thought I'd just bring you a few news and resource items that have recently been published by various sources.
- The charity, Contact, has launched a 'Listening Ear' service, providing free 1-1 support for parents. It consists of a telephone appointment with one of their family support advisers, at a time that's convenient for you. They are offering emotional support, reassurance and strategies for improving your child’s sleep, reducing their anxiety, behaviour difficulties and so on. To use the free service, you need to book an appointment .
- The Department for Education has published a new page containing all updated guidance and information for schools. You can find it here. Its main page for education and childcare can be found here. They've also put out a similar collection "Local authority children’s services: coronavirus (COVID-19) that you can find here There is also: Supporting children and young people with SEND as schools and colleges prepare for wider opening
- Coronavirus: Managing risk to get our special school ready for reintegration
- SNJ In Conversation
- Coronavirus: Disabled children’s education rights must be restored now, before any formal return to school
- Improving SEND provision: Co-produced resources for the whole school
- SEND Law and Coronavirus collection
- EHCPs 2020: Postcode lotteries and the Hall of Shame
- It is a mistake to assume all vulnerable children are ‘at risk of harm’
- Dear Prime Minister, not all education in lockdown is equal
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Don’t miss a thing!
- #ProvisionDenied Return to School SEND Legal Webinar *recording + questions answered* - March 5, 2021
- Poor advice for Post-16: Why Katie & Harvey Price’s long hunt for a suitable college is far from unique - March 2, 2021
- Free back-to-school legal WEBINAR! What to do if your child’s SEND education rights are denied when schools fully-reopen - February 25, 2021