Education, Health, and Care plans and Statements of Special Educational NeedsPublished Date: 28 Sep 2020
The Coronavirus Act 2020
New laws (the Coronavirus Act 2020) were passed that allow local authorities in England, Northern Ireland and Wales to effectively ‘suspend’ a child’s statement or Education, Health and Care (EHC) plan. When this happens, local authorities have to do their best (to use “reasonable or best endeavours”) to meet the support needs set out in a plan or statement.
These powers are only in force if the Government has issued a notice to say it thinks local authorities need this flexibility:
- In England, whilst EHC plans were suspended over the spring, as of the 31st July, plans now again have the same legal force that they did before.
- In Northern Ireland, the Government has re-issued a notice and the Education Authority must use their best endeavours to ensure the required support set out in a statement is provided. A new notice must be re-issued each month.
- In Wales, no notice have been issued and statements continue to have the same legal force as usual. However, it is possible that a notice may be issued in the future, particularly if there is a second wave of coronavirus.
More information about these changes is shown below. You can also contact our helpline for any information or advice on what these changes mean for your child.
What does reasonable/best endeavours mean and what can I expect from my education setting/local authority?
At the time of writing, the below section directly applies to families in Northern Ireland. It is included for information only for families in England and Wales at this time in case the legal situation changes. Additional information for families in Northern Ireland about this issue is available on our website.
Your child’s Education, Health and Care plan or statement sets out the support that your child legally requires. The Coronavirus Act means that the Government can issue a notice to say 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” (England) or “best endeavours” (Northern Ireland) to provide what is needed.
There is no single straightforward definition of what reasonable/best 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
We would expect to see the following approaches taken when considering what reasonable or best 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 or best 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 or best 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 or best 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 also relaxed some of the legal timescales around EHC plans. These changes are no longer in force and local authorities and education settings are now required to meet legal timescales as before.
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.
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.