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Legal changes

SEND duties continue despite COVID-19

Local authorities must ensure special educational provision is provided

In January, the Minister for Children and Families, Vicky Ford, issued an open letter to children, young people, and families highlighting that Special Educational Provision (“SEP”) remains available to children and young people during lockdown and she helpfully signposted all of the guidance that is in place to support schools, health authorities and local authorities to achieve this.

The Government’s main guidance for schools (Restricting attendance during the national lockdown: Schools) was updated on 14 January 2021. The Guidance for sixth form colleges; general FE colleges; independent training providers; designated institutions; adult community learning and post 16 institutions was also updated on 21 January 2021 and there is separate guidance for special settings which was updated on 18 January 2021.

Under the Coronavirus Act 2020, time limited easements (Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020) were issued amending the local authority’s ‘absolute duty’ to secure special educational provision to a ‘reasonable endeavours’ duty. But after 25 September 2020 these easements ceased to have effect and the ‘absolute’ duty has been reinstated (s.42 CAFA 2014).

Local authorities must continue to ensure that special educational provision is provided to children and young people identified as having special educational needs.

Vulnerable children & children of critical workers

When the third lockdown was declared on 4 January 2020, schools were not closed, pupils’ attendance at school was merely ‘restricted’ to those pupils who were defined by the Government as “vulnerable” or “the children of critical workers. Vulnerable pupils included children in need (s.17 Children Act 1989), children and young people with an Educational Health Care (“EHC”) plan, and children and young people who would otherwise be considered ‘vulnerable’ who were listed in the guidance provided. All of the children identified within the guidance are entitled to attend school full time and as children and young people in special schools and alternative provision are all likely to be “vulnerable” it is expected that special schools would continue to operate as usual with all pupils attending.

Schools & colleges

Where there is an EHC plan in place and a school has been named within it, there is a legal duty upon that school to admit that child or young person (s.43 CAFA 2014) and for the school to use its ‘best endeavours’ to meet the child’s special educational needs (“SEN”) by providing the Special Educational Provision (“SEP”) outlined in section F of the EHC plan (s.66(2) CAFA 2014).

The updated ‘restricting attendance guidance’ with its wider definitions of “vulnerable” and “critical workers” means that there is an increased eligibility, resulting in schools having to accommodate more children than in previous lockdowns. Schools are struggling with this and are trying to find alternative ways to restrict the number of children on site.  The new guidance makes clear that the school’s risk assessments, used in the previous national lockdowns to restrict attendance, should not be used to filter these eligible students.

Schools have wide-ranging duties to children and young people with special educational needs and disabilities whether or not they have an EHC plan. To this end, they are reminded to continue to deploy teaching assistants and enable specialist staff from both within and outside the school to work with pupils in different classes or year groups.

Parents are encouraged to discuss any concerns they may have with the education setting to see whether any reassurance could be provided, or adjustments made to support attendance. Education settings working with other local partners (local authorities and health authorities) should, where appropriate, consider the parent/young person’s concerns carefully and work collaboratively with families so that, where appropriate, the child or young person can be supported to attend.

If, for any reason, it is not possible for a child with special educational needs, either supported with an EHC plan or supported through SEN support to attend school or college, then they should receive remote education and support, with schools and colleges working closely with families to make appropriate adjustments to ensure that pupils with SEN can access remote education alongside their peers.

Local authorities and health bodies

Local authorities and health care bodies are also reminded that children and young people with special educational needs are also entitled to receive appropriate support from health and social care services, where it is ‘reasonably necessary’ for the purposes of provision specified in an EHC plan, which means that specialists, therapists, clinicians, and other support staff are able to provide interventions as usual, including where this requires them to move between settings. Parents and carers may also continue to access respite including accessing services which care for children away from home and care which is delivered in the family home. Where this is not possible, local authorities are asked to consider increasing the use of direct payments to support parents of children and young people to meet needs as flexibly as possible.

Non-attendance

Whether a child or a young person with an EHC plan attends their education setting is ultimately a matter of choice for parents of children and for pupils over 16 the young people concerned. If they choose not to attend, they should inform the education setting so this can be recorded. However, the guidance is clear that a ‘leave of absence’ should be granted and such absence should not be penalised.

Clinically extremely vulnerable

Where parents have discussed this with their child’s doctor and the doctor has confirmed that a child or young person is considered clinically extremely vulnerable, they are advised not to attend their education setting during the national lockdown. Instead, education settings should work with local authorities and health and social care partners to ensure that remote education is provided, and support is put in place.

Mass testing

Testing is voluntary, so no child or young person will be tested unless informed consent has been given by the appropriate person (usually the parent or young person). Most secondary aged children and young people will be able to self-swab, but in exceptional circumstances where this is not possible, educational settings may want to work with parents to agree to a parent coming in to support their child to self-swab or to swab their child.

No children or young people are to be prevented from receiving face-to-face education if for any reason they are not tested, except where they have had a close contact with a positive case where they will either have to test negative or isolate for 10 days, meaning that if a test is refused then the child or young person must isolate instead.

Conclusion

Parents and young people are being actively encouraged to complain when they are not receiving the service they are entitled to receive. Whilst schools only have a ‘best endeavours’ duty to provide the SEP identified, local authorities retain the absolute duty and local authorities will need to work closely with their schools and the parents of children and young people to ensure that needs are being appropriately met.

Failure to do so will see an increase in complaints which may proceed to the LGSCO and an increase in requests for reviews which may then proceed to the SENDIST tribunal or in some cases even applications for judicial review.

The Local Government Ombudsman’s report 2019 identified a system in crisis, with almost 9 out of every 10 complaints being upheld against local authorities and compensation awards made. The figures coming from the SENDIST tribunal identifies a similar position with almost all tribunal appeals being upheld against local authorities.

Local authorities risk a tsunami of complaints and claims if delivery of special educational provision in schools is not addressed now.

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