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Please note, the following article has been written on the basis of the government’s current guidance. This will continue to change over time and schools and families will need to adapt plans accordingly.
Depending on specific circumstances, schools and families may need to seek legal advice where necessary.
Updates
All schools have been ordered to effectively close, retaining a skeleton staff to provide education for the children of key workers, and ‘vulnerable children’.
Vulnerable children include those who have a social worker and those children and young people up to the age of 25 with education, health and care (EHC) plans.
However, as for all children, the overriding principle is that children and young people with an EHC plan should remain at home if it is safe for them to do so.
Ultimately, decisions about whether you should provide access to school for children with EHC plans need to be made on a case-by-case basis. You will need to risk assess each child in consultation with the LA and their parents/carers to decide whether they need to continue to be offered a school place in order to meet their needs, or whether they can safely have their needs met at home.
Schools should consider the needs of all children and young people with an EHC plan, alongside the views of their parents/carers, and make a risk assessment for each child or young person. When carrying out the risk assessment, you will need to consider the following:
During this outbreak, schools, LAs, health bodies, parents and young people with SEND should work together to respond pragmatically and flexibly to each individual’s needs. Other considerations to make include:
Ultimately, decisions about whether you should provide access to school for children with EHC plans need to be made on a case-by-case basis
Any risk assessment should involve a joint discussion between someone in the school who knows the child well and understands their needs (often, but not exclusively the SENCO), the child’s parents and the LA.
The assessment should be focused around the best interests of the child, with the primary focus being on their safety. For some children, daily risk assessments will be necessary to take into account any changes in circumstances, for example staffing, environment or the health of the child.
Guidance on the nasen website notes the following:
‘If it is the view of the headteacher that having a particular child in school significantly increases the risk to them or others (staff or pupils), and there is a reasonable alternative (such as staying at home), then it seems appropriate for schools to take the necessary action to keep children safe.’
The Coronavirus Bill has now been passed and is legislation under the Coronavirus Act 2020. This Act provides for the possibility of a temporary relaxation of duties on local authorities with regards to delivering special educational provision contained within an EHC plan.
Although EHC plans will remain in force, under the Coronavirus Act the secretary of state has the power to modify the ‘absolute duty’ upon local authorities to secure and deliver the provision within the plan (section 42 of the Children and Families Act 2014).
So rather than an absolute duty, LAs are able to use ‘reasonable endeavours’ to deliver the provision. In reality, this will involve looking at creative ways to deliver the provision, taking into consideration the practicalities of the current situation.
In addition, the legislation also gives the secretary of state the power to disapply Section 43 of the Children and Families Act which requires a school named in Section I of an EHC plan to admit a child or young person as a pupil. The duty to undertake annual reviews of EHCP’s may also be put on hold.
The measures stated above will not apply automatically.
In order for any of these situations to come into force, Schedule 17 of the Act has created a power for the secretary of state to issue a notice disapplying or modifying the existing statutory provisions (listed above) for up to one month at a time, but there can be repeated notices.
This notice has yet to be issued, so at this current moment in time the duty on a LA to secure provision in an EHC plan remains unchanged i.e. LAs still have to provide provision in Section F of an EHC plan.
For schools, pragmatically, it will not be possible to provide a ‘normal’ education.
Remember, you are essentially providing a reduced service which keeps the child safe where it has been agreed between you and the family not to keep the child at home or where the parent of the child is a keyworker and there is no other alternative provision which can be made for them.
The government has asked that schools work closely with their LA and other education providers to ensure sufficient provision is available across the local area. This may mean some children accessing a different educational setting to their normal one and some staff being redeployed.
You will need to contact your LA or any educational establishment coordinating a local response to discuss this further.
Plans are being put in place to amend the current legislation to ‘relax’ some of the duties on schools and LAs around EHC plans
The government is making plans (in partnership with LAs) for alternative transport arrangements for children who will be accessing a different educational setting to normal.
Further details on this are yet to be published.
The duty on LAs to carry out EHC needs assessments currently remains and so it is unlawful for LAs to simply suspend the EHC plan process (even though some LAs are doing this).
However, on a practical note their ability to comply with deadlines will be hampered by the current situation and their capacity to fulfil their duties will be reduced.
The DfE have acknowledged this in the temporary changes to legislation.
EHC annual reviews are still to take place ‘as soon as is reasonably practicable’ but in whatever format is most appropriate (e.g. by phone or online) and agreed by all parties. Again see our summary of the temporary changes.
If you and the parents feel there is an urgent need to amend the provision or placement in a child or young person’s EHC plan, speak to the LA about this as soon as is practically possible.
