Education, Health, and Care plans and Statements of Special Educational NeedsPublished Date: 03 Jul 2020
Last updated: 3rd July 10am. We aim to update this blog as soon as any new information is made available.
The Coronavirus Act 2020
New laws (the Coronavirus Act 2020) were passed that allow local authorities in England and Northern Ireland to effectively ‘suspend’ a child’s statement or Education, Health and Care plan. Instead, local authorities have to do their best (to use “reasonable endeavours”) to meet the support needs set out in a plan or statement.
The suspension of statements or plans is time-limited and the Governments in England and Northern Ireland are required to issue a new notice every month if they think local authorities need this flexibility. In England, the Government has said that it will end the current suspension of plans at the end of July.
The Coronavirus Act allows local authorities in Wales to do the same. However, at the time of writing, these powers are not in force. If you live in Wales, your statement still has the same legal force that it did before.
What does reasonable endeavours mean and what can I expect from my education setting/local authority?
The following section applies to England only. Information for families in Northern Ireland about this issue is available on our website.
Your child’s Education, Health and Care plan sets out the support that your child legally requires. The Coronavirus Act means that local authorities and education settings, for a short while, do not have to meet these legal requirements. Instead, they meet use their “reasonable endeavours” to provide what is needed.
There is no single straightforward definition of what reasonable endeavours means – and what is reasonable in one situation may not be reasonable in another. There will be a range of different factors to be considered in deciding if a setting or local authority has done all they could reasonably do.
In addition, coronavirus is a crisis where, for all families, public health must take precedence. For example, speech and language therapists are being redeployed to provide critical care in health in many areas. One-to-one support may therefore no longer be possible in many cases. Separately, a large number of specialist staff may be unwell themselves or forced to self-isolate as a result of coronavirus.
It’s important to remember that none of these new laws give local authorities the power to amend the contents of a plan. This means that, once any suspension is lifted, your child’s plan will have the same legal status that it did before. You also still have the right to request an assessment for a plan.
Factors to take into account
The Government has issued some guidance around this but ultimately, the final arbiter of what is reasonable would be a judge in a court or Tribunal. However, we would expect to see the following approaches taken when considering what reasonable endeavours can be put in place:
- Education settings and local authorities must look at each case individually to see what could be reasonably provided if what is normally provided or required is no longer possible. Specific levels of need or vulnerability should be taken into account. There should be no ‘blanket’ policies or wholesale cancellation of support, plans or statements across an area.
- Education settings and local authorities should work with families as much as possible to agree any changes. Families may have their own suggestions and ideas for how things could be done differently.
- If what is normally provided or required is no longer possible, families should be given the reasons for this in writing, along with an explanation of what reasonable endeavours the local authority have used to ensure that the required support is still, as much as possible, provided, along with details of what will be provided instead.
- A consideration of how to respond to the individual needs of children in creative and flexible ways, as many education settings and local authorities already are. This includes drawing on the wider skills of other staff or other families as appropriate.
- Whether any reasonable endeavours themselves are likely to be accessible to deaf children and young people. It’s important to recognise that the needs of deaf children will vary – what’s accessible to one child may not be accessible to another.
Whilst each individual case is different, below are some examples of alternative arrangements that could be put into place that we believe could fit the criteria of ‘reasonable endeavours’:
- Where deaf children and young people are known to have good use of their hearing for understanding spoken language, and/or known to have good lip-reading skills, using video conferencing instead of telephone appointments.
- Providing remote communication support as needed. For example, if providing online teaching or doing any kind of online assessment, we would expect the education setting/local authority to consider funding the cost of a remote speech-to-text reporter or a BSL interpreter. Similarly, if a deaf child uses a communication support worker in the classroom, exploring if this support can still be provided remotely or in different ways to support a deaf child in completing homework tasks, etc.
- Provision of radio aids in the home. Individual bespoke insurance arrangements can be purchased if this is a concern. In any event, we would take the view that the need to ensure continued access to learning reasonably outweighs any insurance concerns.
- If staff can no longer provide support remotely, providing a range of suggested, optional activities or interventions that families can chose to do if they are able to. Alternatively, considering if alternative staff who have some knowledge but not necessarily the right qualifications can be brought in to provide support.
- Where appropriate and where it can be managed effectively, facilitating or making use of peer-to-peer support opportunities among families.
The Government in England has also relaxed some of the legal timescales around EHC plans. For example, if you had requested an assessment for an EHC plan, the local authority had to get back to you within six weeks with a decision. New laws have been passed which effectively suspend these and other timescales if the spread of coronavirus makes it difficult to meet the original timescale.
Instead, local authorities must meet their requirements as soon as “reasonably practical.” Again, there is no legal definition of what is reasonably practical. However, if you feel that a delay is unreasonable or is for reasons unrelated to coronavirus, or if you feel that a delay will cause significant harm to your child, you should discuss this with your local authority.
This is a temporary change. The Government has said that the previous legal timescales will come back into force on the 25 September.
Local authorities also still have to carry out annual reviews of your child’s plan as soon as reasonably practical. Whilst the review may take a different form (e.g. it may be carried out virtually), the Government has stressed that young people must still be at the centre of the process. For deaf children, this may mean ensuring that remote communication support is provided to enable them to participate.
If your child is due to change schools this year, go to college or start an apprenticeship, the local authority should already have carried out a transfer review by the 31 March. The Government has made clear there is no change to the statutory deadline for this and, if there has been a delay, they need to be finalised as a priority.
More information about these changes to the law is available in government guidance. You can also contact our helpline for any information or advice on what these changes mean for your child.
In terms of the work of Tribunals that hear appeals on statements or plans, the different Tribunals in the nations are currently taking different approaches:
- England - the Special Educational and Disability Tribunal hearings will continue by paper or by telephone and (where the technology permits) by video starting on Monday 23 March 2020. More information about this can be found on the IPSEA website.
- Northern Ireland - we understand that the Special Educational Needs and Disability Tribunal is operating on a limited basis due to the outbreak of coronavirus. Staff are able to process post and respond to emails. Parental SEN Appeals and Disability Discrimination Claims should still be filed by parents as usual and these are being registered and processed. Cases which are ready for hearing can be heard remotely by having a hearing on the papers alone; or by teleconference or secure video-link.
- Scotland - Health and Education First-Tier Tribunals are being postponed until at least the end of June, unless the case is urgent. Any urgent hearings will be conducted by telephone.
- Wales – we understand that the Special Educational Needs Tribunal Wales are currently looking into setting up virtual hearings.