EHCPs: guidance on temporary legislative changes relating to coronavirus (Covid-19)

The government have announced temporary amendments to the SEND regulations around legal duties and timescales for education, health and care plans (EHCPs). There are two main changes.

1. A temporary relaxation of the legal duty on local authorities or health commissioning bodies to secure or arrange the provision set out in an EHCP – they can now use ‘reasonable endeavours’.

This means that local authorities must consider for each child and young person with an EHCP what they can reasonably provide in the circumstances, during the notice period (this notice currently runs until the 30 May 2020). In deciding what provision must be secured or arranged, the local authority should consider:

• the specific local circumstances e.g. workforce capacity
• the needs of and specific circumstances affecting the child or young person
• the views of the child or young person and their parents

Local authorities should keep a record of the provision it decides it must secure or arrange, confirm this to the parents and keep the provision under review. Local authorities must not apply blanket policies about EHCP provision.

What does this mean for schools?

LAs and schools should explore with parents and young people what provision can reasonably be secured or arranged, considering the following.

• What the provision will be and how it will be different to that stated in the EHCP.
• Where the provision will be delivered.
• How the provision will be delivered.
• When the provision will be delivered.
• Who will deliver the provision.

What constitutes reasonable endeavours will vary according to the needs of each child or young person and the specific local context. Examples of alternative arrangements for provision include:

• changes to the frequency and timing of provision e.g. moving to a part-time timetable
• temporary placement in another school (mainstream or special)
• provision of a home learning programme or printed exercises
• video sessions with teachers or peers
• online sessions delivered by therapists
• online lessons from a specialist teacher
• loaning parents school equipment to be used at home.

Further examples of alternative arrangements are provided in the DfE guidance.

2. A temporary amendment of Regulations that specify legal timescales around processes relating to EHC needs assessments, plans and annual reviews.
   
This means that local authorities must still carry out EHC needs assessments, issue plans and carry out annual reviews. However, where it is not ‘reasonably practicable’ to conclude an action within the statutory timescale (due to coronavirus) the LA will have to complete the process as soon as is ‘reasonably practicable’. This notice is in force until 25 September 2020.

Any decisions made must continue to be made in accordance with the statutory framework and be based on the individual needs, provision and outcomes for the child or young person. Local authorities must not apply blanket approaches.

What does this mean for schools?

• Schools, parents and young people can still request EHC needs assessments but these may take longer to process.
• Where an EHC needs assessment has already been completed and the local authority have agreed to issue a plan, the plan must still be issued. However, the process may take longer.
• A final EHC plan must still include all of the required information and advice, including the full provision needed.
• Where a school is named on an EHCP, the school still has a duty to admit the child or young person.
• Annual reviews should still take place but the form they take is likely to be different e.g. by phone or online, and the timescales may change.

Local authorities should be issuing guidance for schools to outline their approach to implementing the changes.

In summary

• Legal requirements for local authorities delivering provision in EHCPs have been modified to delivering ‘what they can reasonably provide in the circumstances’.
• EHC needs assessments and issuing of plans are to take place ‘as soon as is reasonably practicable’.
• EHC annual reviews are still to take place ‘as soon as is reasonably practicable’ but in whatever format is most appropriate and agreed by all parties.
• Local authorities should be issuing guidance for schools as soon as possible.