SEN-FSG  update on COVID-19, school closures and SEN provision

Information accurate as of 19.06.2020 [16.58pm]

We have updated our list of FAQs on how the COVID-19 measures will affect children and young people with special educational needs and disabilities (“SEND”).

The FAQs below cover:

School closures and SEND provision

  1. What are children and young people with SEND’s entitlements while schools are partly closed?

All schools were ordered to effectively close in March, retaining a skeleton staff to provide education for the children of key workers, and some ‘vulnerable children’. 

Vulnerable children include those who have a social worker and those with an education, health and care (“EHC”) plan. Most children with SEND, who receive SEN Support at school but do not have an EHC plan, would be expected to stay home unless they have a social worker or a parent or carer who is a critical worker. The government has published guidance about who is a vulnerable child and who is a critical worker

Until recently, the government’s advice was that even vulnerable children and children of key workers should stay home if they can. However, from 11 May 2020 new guidance was issued on implementing protective measures in education and childcare settings, which states that “Now that we have made progress in reducing the transmission of coronavirus we are encouraging all eligible children to attend - it is no longer necessary for parents of eligible children to keep them at home if they can.”

All schools should now be planning for a phased re-opening for some year groups – see the section below for more information.

If you believe your child needs to attend school but their school remains closed, the government’s advice is to speak to the LA who should redirect you to a local school in your area that your child can attend. If this happens it will be on a temporary basis and your child will remain registered as a pupil at their usual school. The guidance for schools on actions during the coronavirus outbreak includes a reference to ‘hubs’, suggesting that “shared provision through multi-school or early years hubs and clusters is an option being considered in some areas”. Talk to your school, or your LA if the school has closed, to find something that could be put in place, including the possibility of the school being open during a school or bank holiday.

If you feel strongly that your child needs to continue receiving (at least some) educational input, the key thing to flag is if there could be a risk to their health, wellbeing or safety if they do not receive a particular provision or intervention. 

For children with EHC plans, there is more detail in the section below.

  1. Do schools have to allow all children with EHC plans to attend?

No – it will depend on whether they would be as safe or safer attending school rather staying home.

For children with complex needs, LAs and schools have been advised to carry out a risk assessment to determine whether “their needs can be as safely or more safely met in the educational environment” – see the Department for Education (“DfE”) guidance on supporting children and young people with SEND for more information. Not all children with EHC plans will have ‘complex needs’ (and equally some children without EHC plans may have complex needs); whether or not a risk assessment was necessary should have been determined by the school and the LA.

The guidance aims to help LAs, in collaboration with schools and parents, assess the risks of both options. It explains that where a child or young person with an EHC plan will be safer at home, the DfE recommends they stay at home. Where they will be as safe or safer at an education setting, the DfE recommends they attend the education setting. (The advice mentioned above that all eligible children should attend “if they can” would be superseded by a risk assessment concluding that the child in question is safer at home.)

It also makes some suggestions about what provision might be possible to deliver in or to the home.  You might want to read this guidance to prepare for discussions with your LA and setting.

Finally, the guidance states that initial risk assessments should now be updated in light of the phased reopening of schools.

For children with EHC plans who do not fall into the ‘complex needs’ category, and for whom no formal risk assessment has been carried out, the current government position is that education at school should be available and they should be “encouraged” to attend.

For information on how the provision in a child or young person’s EHC plan may be affected, see the section on EHC needs assessments and EHC plans below.

While the Coronavirus Act 2020 gives the Secretary of State the option of temporarily disapplying the duty on schools to admit a child where the EHC plan names that school (section 43 of the Children and Families Act 2014), this has not been done. 

  1. What if I do not want to send my child to school, for example because they have a weakened immune system?

In accordance with the guidance on self-isolation, children with symptoms (or who live with anyone with symptoms) of COVID-19 should stay at home.

If you feel it would be too high risk to send your child to school because they, or someone else in your family, is at particularly high risk, there is of course no requirement to send your child in.  If a risk assessment is carried out by the LA this is likely to conclude that the child would be safer remaining at home.

If your child is not within the category that requires a formal risk assessment by the LA, the guidance on implementing protective measures in education and childcare settings states that:

  • If they are classed as ‘clinically extremely vulnerable’ (you will have been contacted by the NHS if this is the case) they should continue to ‘shield’ and should not attend school.

  • If they are classed as ‘clinically vulnerable’, parents should follow medical advice on whether or not they should attend school.

  • If the child lives with someone who is clinically extremely vulnerable, the guidance advises they only attend an education or childcare setting if stringent social distancing can be adhered to and the child is able to understand and follow those instructions. This may not be possible for very young children and older children with SEND; where it is not possible, they are not expected to attend school and should be supported to learn at home.

  • If the child lives with someone who is clinically vulnerable, the guidance says, “they can attend their education or childcare setting”.

Under the Coronavirus Act 2020, the Secretary of State has temporarily disapplied the criminal penalty for parents failing to send their children to school for a specified period (currently 1 May – 30 June). This is reflected in the guidance for parents. While emphasising that parents of eligible children are “strongly encouraged” to send their children to school, the guidance states, “Parents will not be penalised for non-attendance at this time”.

The DfE has also published specific guidance on how schools should record full and partial closures and non-attendance during the coronavirus outbreak in their attendance records.

  1. What if I cannot afford equipment to support my child at home?

As below, if your child has an EHC plan the LA currently (1 May – 30 June 2020) needs to do whatever it reasonably can to put their provision in place.

If your child does not have an EHC plan the government guidance on preparing for wider opening from 1 June 2020 says schools should use their best endeavours to support pupils remaining at home, making use of the available remote education support. It may also be appropriate to consider making an EHC needs assessment request to secure provision called for by your child’s needs in the long term. LA’s are required to consider such requests at this time.

In the shorter term, if you are a low-income family and your child or young person (up to the age of 17) is “disabled or seriously ill” you may be able to access support from the Family Fund: The DfE has announced that Family Fund will receive a multi-million pound grant to assist it in providing vital equipment to make low-income families’ lives easier while implementing social distancing measure, including the families of children or young people with special educational needs and disabilities, lives easier while implementing social distancing measures. This could include computers, specialist equipment and educational toys. Families in England can find out more about this, including the eligibility criteria, and apply for grants from Family Fund directly here.

Other charitable organisations may also be able to assist.

  1. Are residential schools and colleges required to be closed?

The DfE guidance on actions for schools during the coronavirus outbreak states that residential schools should be supported to remain open, wherever possible. This may include “sourcing and deploying specialist health and care staff, from other settings, to provide cover arrangements”.

The DfE guidance for Further Education ("FE") colleges states that it expects residential FE providers to keep their residential provision open where necessary, and that they should prioritise those whose needs cannot be accommodated safely at home, and those who do not have suitable alternative accommodation.

We are aware that parents of children or young people in residential settings are likely to face unique challenges if their child needs to return home. Raise your concerns with the school and your LA (and local NHS body, if relevant), as soon as possible to try to work out the best solution.

The government has also issued guidance on isolation within residential settings.

  1. What about home to school transport while schools are largely closed?

The legal duties around school transport have not changed.

DfE guidance states that, “Local authorities continue to be under a statutory duty to provide free home to school transport for eligible children that are able to attend school”. Schools, LA's and relevant transport providers should work together to put in place arrangements which fit the local circumstances, including the measures being put in place to reduce contact.

If your child remains entitled to go to school but school transport has been stopped due to staff absences, speak to your school and LA about what temporary solutions may be able to be put in place.

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Gradual re-opening of schools and safety measures to be taken

  1. How long are schools likely be closed?

The government has begun a partial re-opening of schools from 1 June 2020. The guidance is slightly different depending on whether the child or young person is in a mainstream or a specialist setting.

Mainstream settings

As set out above, schools should currently be providing support to some vulnerable children and the children of key workers. Children and young people - regardless of year group – with EHC plans who have not been attending their setting in the recent period are “expected” to return if their risk assessment determines it is appropriate for them to. Special schools, special post-16 institutions and hospital schools have been asked to work towards a phased return of more children and young people without a focus on specific year groups and informed by risk assessments.

The first phase of wider re-opening in mainstream schools will apply to:

  • nursery, reception, year 1 and year 6 in primary schools.

From 15 June, it is intended that mainstream and alternative provision secondary schools will offer “some face-to-face support” for year 10 and 12 pupils. This is limited to up to a quarter of the year 10 and 12 cohort at any one time, including vulnerable children and children of critical workers in those year groups who are still encouraged to attend full-time. The DfE’s Guidance for secondary school provision from 15 June 2020 stresses that face-to-face support should supplement high quality remote education which is expected to remain the predominant form of education for these year groups. This guidance includes points secondary schools should consider on minimising risks upon reopening, in addition to the implementing protective measures guidance to below.

The equivalent approach applies in FE settings, which are advised to plan for 16 to 19 learners (those equivalent to Y10/Y12, and also those in the first year of a two-year course) to attend in person from 15 June.

It is not yet clear when further year groups will be asked to attend.

This guidance also states that schools should use their best endeavours to support pupils attending school as well as those remaining at home, making use of the available remote education support. The guidance includes a number of points of particular relevance to children and young people with additional needs. Schools should:

  • consider their pupils’ mental health and wellbeing and identify any pupil who may need additional support, so they are ready to learn.

  • assess where pupils are in their learning and agree what adjustments may be needed to the school curriculum over the coming weeks.

  • identify and plan how best to support the education of high needs groups, including those with SEND.

The government’s Planning Guide for Early Years Settings and Planning Guide for Primary Schools suggests these settings liaise with LA’s regarding what support for meeting the needs of pupils with SEND is available from external agencies. 

Specialist settings

For special schools, the DfE guidance specifically about SEND and re-opening schools states that, “From 1 June we will be asking special schools and hospital schools to work towards a phased return of more children and young people, without a focus on specific year groups and informed by risk assessments. From 15 June, we will be asking specialist post-16 institutions to work towards a phased return of young people, without a focus on specific year groups or proportion of learners and informed by risk assessments.”

The guidance goes on to make clear that, in the special sector, pupils’ returns should be guided by their risk assessment and not their year group, and that by the relevant dates settings should welcome back “as many children and young people as can be safely catered for in their setting”.

The guidance suggests that settings may want to prioritise attendance for children and young people approaching key transition points, or those who most need on-site provision to support their life chances and development, for example to reinstate routines and engagement with learning. Settings are encouraged to consider flexible approaches such as:

  • part-time timetables and attendance rotas

  • blended onsite and home learning

  • phased returns for individuals or groups

  • children and young people being offered blocks of time on-site on a rotating basis.

  1. What should early years settings, schools and colleges do to reduce the risk of transmission as more children return?

The guidance on implementing protective measures in education and childcare settings states that educational settings should use a ‘hierarchy of controls’ to reduce spread, including:

  • ensuring pupils and staff stick to the guidance on self-isolation if they or a member of their family displays symptoms;

  • cleaning hands more often than usual;

  • ensuring good respiratory hygiene (‘catch it, bin it, kill it’);

  • cleaning frequently touched surfaces often;

  • minimising contact and mixing by altering, as much as possible, the environment (such as classroom layout) and timetables (such as staggered break times).

The guidance on protective measures and secondary school provision from 15 June 2020 sets out the measures schools should take, which include:

  • In all settings:

    • Pupils and staff should only mix in a small, consistent group which stays away from other groups (but notes that “brief, transitory contact, such as passing in a corridor, is low risk”).

    • The same teacher(s) and other staff should be assigned to each group each day, “recognising for secondary and college settings there will be some subject specialist rotation of staff”.

    • Shared areas such as halls and sports facilities should be used at half capacity. They can be shared as long as different groups don’t mix and adequate cleaning between groups between groups is in place.

    • If there is a confirmed case of coronavirus in a group or class, the rest of their class or group within their childcare or education setting should be sent home and advised to self-isolate for 14 days.

  • In early years settings:

    • The staff to child ratios within Early Years Foundation Stage should be used to group children. When doing so the Planning Guide for Early Years Settings states that its preferable to limit group sizes to a maximum of 8 children and settings should ensure there are no more than 16 children in a group.

    • The guidance anticipates that “unlike older children and adults, early years and primary age children cannot be expected to remain 2 metres apart from each other and staff”. However, Planning Guide for Early Years Settings includes indoor space requirements which must be followed.

  • In primary schools:

    • As above it is not expected that pupils will remain 2 metres apart from others.

    • Classes should normally be split in half, with no more than 15 pupils per small group and one teacher (and, if needed, a teaching assistant).

  • In mainstream secondary schools and FE colleges:

    • Classes should generally be halved, and classrooms and workshops rearranged to allow sitting positions 2 metres apart.

    • No more than a quarter of the year 10 and 12 cohort should attend at any one time.

    • Some schools may plan to use rotas. Where rotas are used, secondary schools should avoid split day rotas within the same day and ensure that only a quarter of children are ever in the school on any one day (e.g. morning and afternoon rotas should not be applied). If rotas are used, vulnerable children and children of critical workers in all year groups should still be encouraged to attend full-time subject to individual risk assessments.

    • Guidance for FE providers highlights careful preparation for the return of young people with SEND (e.g. social stories to help with the transition, or routes round the college marked in Braille or with other meaningful symbols to maintain social distancing). This guidance encourages providers to give particular attention to young people with EHC plan who are due to transition to another setting or into adult life who may need a form of face to face transition even if they are not attending their usual setting.

 

 

  1. Do staff or pupils need to wear PPE?

The guidance on implementing protective measures in education and childcare settings states that wearing a face covering or face mask in schools or other education settings is not recommended. Face masks are actively advised against for those who may not be able to handle them as directed (for example, young children, or those with special educational needs or disabilities) as it may inadvertently increase the risk of transmission.

The guidance does not recommend PPE for staff in education settings, “even if they are not always able to maintain a distance of 2 metres from others”. The examples given of the “very small number of cases” where PPE would be required includes:

  • children or young people whose care already routinely involves the use of PPE due to their intimate care needs;

  • children or young people who begin displaying symptoms of coronavirus and need direct personal care until they can return home.

If a setting requires but is unable to obtain PPE the guidance states they should contact their local authority for assistance.

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  1. Is it possible to ask for my child with an EHC plan to continue receiving education at home once the schools fully re-open?

If, for whatever reason, you feel that your child would actually be better off remaining at home for the longer term, you have two options: elective home education or education otherwise than in a setting (“EOTAS”).

  • If you choose to electively home educate, your LA is likely to conclude that you are making your own arrangements for the child’s education, and so will no longer be obliged to make any of the provision in your child’s EHC plan.

  • The alternative is asking for your child’s EHC plan to be amended to set out EOTAS rather than naming a school. If you were to want this you can ask for the EHC plan to be amended during any ongoing or upcoming annual review process or seek an early review. If the LA did not agree, you could appeal to the SEND Tribunal. However, EOTAS can only be set out in an EHC plan where it can be demonstrated that it would be “inappropriate” for the provision to be made in a school (s. 61 Children and Families Act 2014).

  1. My child has been attending school throughout lockdown because they are classed as a ‘vulnerable child’. Can the school withdraw this place now that more children are returning?

The guidance on providing education to children of critical workers, which also discusses the places available for vulnerable children, states that these children will continue to be offered a place regardless of the year group they are in. It states that schools have flexibility in bringing children back if there are not enough classrooms or spaces available in the setting, or if they do not have enough available teachers or staff to supervise the groups; however they “must first focus on continuing to provide places for priority groups (vulnerable children and the children of critical workers)”.

This indicates the children who have been attending school to date should be given priority above the returning year groups.

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EHC needs assessments and EHC plans

  1. If my child has an EHC plan, doesn’t the LA have a legal duty to deliver that provision?

The Coronavirus Act 2020 has temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty.  This means that during the specified period of notices made under the Act (currently 1 May - 30 June 2020) LAs need to do whatever they reasonably can to put provision in place, but if they cannot do so they would not necessarily be breaching the law. 

The guidance on EHC needs assessments and plans during the COVID-19 crisis explains that LAs and health commissioning bodies “must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances”. This includes considering the individual child/young person’s needs, as well as their and their parents’ views, and keeping arrangements for provision under review

The guidance explains how delivery of provision might work in practice. For example if the child is attending school:

  • due to staffing issues there may need to be alterations to the frequency and timing of the delivery of provision in school, for example, moving to a part-time timetable (the guidance also states there should be adjustments to home-to-school transport arrangements to facilitate this);

  • if the school is closed, there may need to be a temporary placement in another school or a local hub.

If the child is staying at home and it’s not possible for direct therapy to be delivered in the home setting, the guidance suggests alternatives such as:

  • a speech and language therapist delivering sessions via video link

  • the parent and child travelling to receive the therapy at suitable premises, where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19)

  • an occupational therapist or a physiotherapist video linking to a child’s home and modelling exercises that the parents could do with their child.

The guidance does not define ‘reasonable endeavours’ – you can read more about what it means from a legal perspective here.

Again, if there could be a risk to the child or young person’s health, wellbeing, or safety if they do not receive a particular provision or intervention, raise this with your school and LA without delay.  The guidance on supporting children and young people with SEND referred to above may help your discussion.

In law, you can request a personal budget and seek direct payments for special educational provision during the EHC needs assessment process or during an annual review.  However, using reasonable endeavours to secure the special educational provision in a plan may require creative thinking and this is certainly something that could be discussed with a LA.

Guidance has been issued for people who are already in receipt of direct payments in relation to health and social care.

  1.  Do the LA still need to carry out EHC needs assessments?

IPSEA is aware of several LAs who have indicated that they will not be carrying out any EHC needs assessments.  Legally, this is not an option nor has the government indicated any intention to suspend the duty to consider requests for assessment or to carry out the same. The guidance on EHC needs assessments and plans during the COVID-19 crisis makes clear that requests for assessment must continue to be considered.

Decisions about whether or not to assess will continue to be made solely on the legal test.  If a LA refuses to assess, then it must continue to send out the statutory notification (along with notice of appeal rights and deadlines) to the parents or young person.

In IPSEA’s view it would not be acceptable for an LA to refuse to assess due to the fact the child or young person has been out of school. The current situation may in fact make it more, rather than less, likely that a child or young person may require support through an EHC plan.

However, the deadlines which previously applied to LAs when considering EHC needs assessment requests have been relaxed. Where it is not reasonably practicable or it is impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they must instead complete that step as soon as it is practicable for them to do so.

If practical barriers are raised by professionals asked to provide advice and information during an EHC needs assessments, the relevant professional body may have published guidance on how they can operate during the Coronavirus pandemic. For example, the British Psychological Society has developed specific Coronavirus resources for psychologists.

The timeframes have also been relaxed in relation to several other processes relating to EHC needs assessments and EHC plans. The instances where statutory timeframes have been relaxed are:

  • the handling of requests for EHC needs assessments, decisions whether to issue plans and the preparation and issue of plans

  • annual reviews of plans (excluding reviews involving a phase transfer in September 2020 

  • the processes relating to mediation

  • the processes where there is a change of LA or health commissioning body for a plan

  • the process for an LA reviewing direct payment

  • the actions that the LA and health commissioning body must take when the First-tier Tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan (as part of the National Trial, which continues).

  • the publication of and the LAs response to comments on the local offer.

These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’), which amend the timescales in the SEN and Disability Regulations 2014.

The changes are in force until 25 September 2020. Importantly, they do not apply where the deadline had already passed before 1 May 2020 – because the Amendment Regulations can only be relied on for the period since they came into force.

  1. Will annual reviews still need to be carried out?

As above, the Amendment Regulations mean that annual reviews still need to be carried out but the usual deadlines have been relaxed, provided the reason for the delay is “relating to the incidence or transmission of coronavirus (COVID-19)”. So annual reviews still need to happen but may justifiably be delayed. The guidance on EHC needs assessments and plans during the COVID-19 crisis provides more information on this.

The Coronavirus Act 2020 gives the option for the Secretary of State to temporarily disapply the requirement to carry out annual reviews where this is considered to be “appropriate and proportionate”. However, the government has decided not to do this at this stage.

If you feel there is an urgent need to amend the provision or placement in the child or young person’s EHC plan, speak to the school and the LA about this to see what review mechanisms could be put in place.

Social care provision

  1. What are the main implications of the Coronavirus Act 2020 on social care provision?

Currently the legal changes only affect adult social care (for over 18s), but the Department for Education has issued guidance relating to children’s social care.  It has also added some information for children’s social care teams to its guidance for educational settings (see question 1 above).

In relation to adult social care, government guidance sets out the changes ('easements') to the Care Act 2014 to help LAs prioritise care and support during the coronavirus outbreak. The guidance makes it clear that:

"The Coronavirus Act does not give authority to block, restrict or withdraw whole services. It enables Local Authorities to make and apply person-centred decisions about who is most in need of care, and who might need to have care and support temporarily reduced or withdrawn in order to make sure those with highest need are prioritised."

In addition, the LA is expected to apply an ethical framework to decision making whenever it might consider if an easement should be used. 

The easements took legal effect on 31 March 2020. They are temporary and being kept under review. The guidance states that the easements "should only be exercised by Local Authorities where this is essential in order to maintain the highest possible level of services. They should comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long as possible". Section 3 of the guidance sets out what these powers change.

The government has also produced guidance for people receiving direct payments.

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Exclusions and children out of school

  1. If my child was out of school before the school closures were ordered, do I still have an entitlement to alternative education?

If your child attends a Pupil Referral Unit or Alternative Provision, this setting may remain open to provide support for children in the ‘vulnerable’ category and/or children of key workers. The government guidance on vulnerable children states:

“AP providers are well-placed to cater for the needs of the children we are defining as vulnerable in a way that would be difficult to replicate elsewhere. The AP sector therefore has a key role to play in helping safeguard this group of children at this difficult time.”

In terms of re-opening, the DfE guidance for schools on actions during the coronavirus outbreak states that Alternative Provision settings should mirror the approach being taken for mainstream schools, and so should be planning to re-open for some year groups from 1 June (see the section on the gradual re-opening of schools for more information).

If your child was not receiving any education, it is likely to be very difficult to enforce the LA’s duty to provide education while schools in general remain closed, simply because almost all children are now in the same situation.

  1. What is the effect of coronavirus (COVID-19) on governing boards’ duties to consider reinstatement of excluded pupils, and the process for independent review panels (IRPs)?

New regulations, came into effect on 1 June, allowing schools greater flexibility when considering exclusions during the coronavirus outbreak. The changes are explained in this statutory guidance.

The regulations apply to maintained schools, academies (including alternative provision academies, but not 16-19 academies) and pupil referral units. 

Here are the key points:

  • If it's not reasonably practicable for a governing board to meet in person within the usual exclusions timescales, they can meet via telephone or video conference as long as:

  • Everyone agrees to this

  • Everyone has access to the technology

  • Everyone involved can participate fully

  • The meeting will be fair and transparent (if it becomes clear after the meeting starts that it can't proceed fairly, the chair should adjourn the meeting)

  • If the time limit for the governing board to meet to consider an exclusion has not already passed before 1 June, it can be extended as follows:

  • Permanent exclusions, and fixed-term exclusions resulting in pupils missing more than 15 school days in a term –if it's not been possible to meet in person or remotely, the time limit can be extended from 15 to 25 school days

  • Fixed-term exclusions resulting in pupils missing between 6 and 15 school days in a term(and the parent make representations) – if it's not been possible to meet in person or remotely, the time limit can be extended from 50 to 60 school days

  • If the time limit to meet has already passed before 1 June, the board needs to hold the meeting as soon as is practicable.

  • For exclusions covered under the temporary arrangements, the deadline for parents to apply for an independent review has increased to 25 school days.

  • Schools must wait for this extended period to pass before removing the pupil's name from the rolls.

  • Where the independent review panel has not been able to meet in person or remotely, the time limit to do so can be extended from 15 to 25 school days.

  • Which exclusions do these changes apply to?

  • All exclusions that occur between 1 June 2020 and 24 September 2020

  • Permanent and fixed-term exclusions that occurred before 1 June but haven't yet been considered by the board

  • Permanent exclusions that occurred before 1 June and have been considered, if the board declined to reinstate and the time limit to apply for an independent review has not passed

  • Permanent exclusions that occurred before 1 June, where a parent has requested an independent review, but this has not happened yet

'Occurred' here refers to the first day of the exclusion (not the date when the decision to exclude was made or communicated).

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School/college placement in September

  1. Has there been any impact of COVID 19 on Admissions Appeals for school places?

The government has issued guidance to assist those involved in admissions appeals. From 24 April 2020, some of the requirements set out in the School Admissions Appeal Code 2012 have been relaxed as a result of the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These regulations will be in force until 31 January 2021. The new regulations consider timescales and seek to enable admissions appeals (typically held in person) to continue in line with COVID 19 social distancing restrictions by allowing admissions authorities some flexibility in the way they manage appeals.

  1. Our child is moving to a new phase of education in September, but the LA has not issued the amended EHC plan.

LAs have a legal duty to review and amend an EHC plan when a child or young person transfers from one phase of education to another. For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer; for all other phases of transfer, such as from primary school to secondary school, the deadline is 15 February in the year of transfer. These deadlines are set out in Regulation 18 of the Special Educational Needs and Disability Regulations 2014.

The Amendment Regulations, which have temporarily relaxed certain deadlines do not apply where the deadline had already passed before 1 May 2020. You should therefore write to the LA using our model letter. Remember to keep a copy of any letter or email you send. If you don’t get a reply within five working days, or if you need further advice, you can book an appointment to speak with us.

DfE guidance makes it clear that LAs “must already have completed this year’s required transfer reviews…There is no change to the statutory deadlines for these reviews. Where, exceptionally, completion has been delayed, these transfer reviews need to be finalised urgently.”

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Early years provision

  1. When are early years settings going to re-open?

As with schools, early years settings were ordered to close in March, retaining a skeleton staff to provide for vulnerable children and the children of key workers (see the section on school closures and SEND provision above for more details on who this applied to).

Early years settings, along with primary schools (in respect of reception, Y1 and Y6), have been asked to reopen from 1 June 2020. However, DfE guidance explains that “in some cases it may be necessary for settings to introduce a temporary cap on numbers, to ensure that children are kept in small groups, and to avoid mixing of children between groups. Therefore, it does not appear anticipated that all children will be able to attend all early years settings in the same way as before the COVID-19 pandemic immediately upon re-opening.

See the above section on Gradual re-opening of schools and safety measures to be taken for more details on how early years settings are expected to manage risks upon reopening.

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  1. Are there any changes to the requirements on early years settings?

Temporary changes introducing flexibility into the requirements of the early years foundation stage (“EYFS”) came into force on 24 April 2020. Early years settings now only need to use reasonable endeavours to deliver the learning and development requirements set out in the EYFS.  There will also be no assessment (benchmarking) of reception aged children against the EYFS at the end of the year and, consequently, no LA moderation of this.  The DfE has also confirmed that it considers the current situation an “exceptional temporary circumstance” allowing EYFS providers to change the staffing ratios (para 3.30 of the EYFS framework guidance).  No relaxation of the guidance about DBS checks has been made so no unchecked adult can look after children unsupervised.

Making a complaint or challenging a decision

  1. What can I do if I am unhappy with the proposals regarding my child’s education?

If your child does not have an EHC plan, or your complaint is about something the school have done, you should raise this with the school. The DfE has made clear that schools should engage with parents where they can at this time.

If your complaint is about the provision in a child or young person’s EHC plan not being made, you should complain to the local authority.

If the complaint against an LA was not resolved through their internal complaints processes, usually you would be able to complain to the Local Government and Social Care Ombudsman. However they have temporarily suspended accepting new complaints – for full information see this update.

If you are unhappy with a decision by the LA about an EHC needs assessment or about the content of an EHC plan, you can appeal to the SEND Tribunal – see the question below for more information.

  1. Will SEND Tribunal appeals continue?

Yes – please see our SEND Tribunal update.

The SEND Tribunal has been holding hearings on paper (i.e. written evidence only), by telephone or by video since Monday 23 March 2020. With these measures, it is expected that there should be no need to adjourn hearings if the parties are ready to go ahead, even though they may not be able to take place in person. A barrister from Landmark Chambers has written a blog about his experiences of a video hearing. 

The Tribunal has asked parties not to call the Tribunal until 2 days before hearings if they have not heard anything as, like every public service, they are affected by staff shortages as a result of COVID-19.

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Further information

  1. Where can I find more information?

The Council for Disabled Children (CDC) has launched two new email inboxes aimed to answer questions, collate resources, and share information on COVID-19 and the impact on children and young people with SEND and disabilities.

Questions can be sent to the ‘CDC questions’ inbox, CDCquestions@ncb.org.uk. The CDC will collate Frequently Asked Questions (FAQs) and share them with the Department for Education and Ministers as appropriate, in order to publish an FAQs newsflash each Friday. To receive the FAQs newsflash please sign up to their mailing list, selecting the ‘CDC Digest’ option.

The ‘CDC resources’ inbox, CDCresources@ncb.org.uk, is designed to enable parent carers, sector professionals and practitioners to share resources, to support families of children and young people with SEND and practitioners across the disabled children’s sector. The CDC will add these resources to their COVID-19 Support and Guidance webpage. The webpage is kept under continuous review.

Additionally, the government has issued:

As well as providing these updates the legal team also deliver live training in various areas of special educational needs law. If you would like to learn from them take a look at our upcoming training sessions.

Telepone us at  : 0161-755 3482  or 07990594060  /   email office@senfsg.com  

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