Advice Surrounding Coronavirus from Simpson Millar
Since the outbreak of Coronavirus, we have received many calls from our clients as well as members of the public asking for advice and help in conjunction with the virus.
Our priority, at this time, is to keep our colleagues and clients safe and, to do so, we have followed the advice of the government. We would urge everyone to do the same, and to make this easier, we have pulled together the latest information and FAQ's into one place.
Many of the enquiries we have received are about how the Coronavirus pandemic has affected individuals and they are asking for legal advice and support. In a bid to keep you informed with the most up to date information we have published some FAQ’s for different areas of law. We will constantly update these as the situation changes. We will also be sending e-mail updates and bulletins which you can sign up to here.
Throughout the crisis, our aim is the safety of our colleagues and clients and to make sure we can we can continue to provide the outstanding legal services you have come to expect. Read about these measures here.
Coronavirus FAQ for Specific Legal Services
We have updated our policy to ensure we continue to provide the best possible service. This information can be found here.
Here’s an explanation of why we’re recommending simultaneous exchange and completion.
Given the current uncertainty in the housing market surrounding Covid-19 there are additional risks when exchanging contracts and setting a date in the future for completion. We want to make sure you’re protected at this difficult time and to put this protection in place for you, so we’re strongly suggesting a simultaneous exchange and completion.
Ordinarily, we exchange contracts and at this point, the transaction is legally binding for you and the seller. At this point we agree the completion date. The date of completion is when you become the legal owner of the property and can physically move into your new home. This gap between exchange and completion gives you time to finalise your removals, pack your things and finalise all those last minute things.
But because of Coronavirus, there are some risks to setting a future date for completion. These risks are:
- If we’ve exchanged contracts and you or a member of your family becomes ill and needs to self-isolate, you couldn’t move out of your property as a result. This would mean you would be held in breach of contract and you would have to pay additional costs.
- The chain could agree to exchange and set a date for completion, but you could find removal companies are not available because of illness or because the Government has put everyone on lock down. If you’re selling and can’t leave your house by the agreed time on the day of completion, you could be held in breach of contract and have to pay more money.
- If you are buying with a mortgage, we need to know that your funds will be released ready for completion. If your lender can’t transfer the funds in time for completion, you will breach the contract and have to pay additional costs.
- Some conveyancing firms in the chain may not be available, which can cause delays. We’re operating business as usual at Simpson Millar, but not all firms are in our position. All our teams can work from home, we’ve got a national team of Conveyancers and we can move your case to a different fee earner or Manager instantly if anyone becomes ill.
To reduce the impact of these risks and to protect you, we think the best solution is to exchange and complete on the same day, known as simultaneous exchange and completion.
The process of simultaneous exchange and completion works like this:
- We’ll report to you on the title to the property, searches and mortgage offer. Once we’ve received satisfactory replies and enquiries, we can move on to exchange and completion
- We’ll discuss and agree with you and the chain a proposed completion day. Everyone in the chain will work towards the preferred date
- Once the date has been agreed, we’ll request mortgage funds from your new lender
- Just before or on the day of the agreed completion, we’ll ask for the mortgage funds and confirmation from you and the chain completion can take place. At this point, we’ll exchange contracts and complete for you.
We do know that for some people a simultaneous exchange and completion won’t work for you or other people in the chain. Whilst a simultaneous exchange and completion is our current position, it’s not set in stone and we’ll work closely with you to get you the best outcome.
- Family Law
1. Can I stop my ex-partner from seeing our children because they aren’t protecting them from Coronavirus?
Yes. If you think your children are at risk of harm or if your former partner is part of a household that is being required to self-isolate because they are symptomatic. If a Child Arrangement Order exists, you may be able to convince a Court that you have a reasonable excuse not to comply with the Order, but you should take legal advice before you do stop physical contact because such a drastic step may cause your former partner to pursue an enforcement application and each matter will be dealt with on a case by case basis. It’s important to understand that judges, whilst applying the law, have wide discretion and outcomes will vary, depending upon the facts.
It’s important to remember that the current Government Guidance provides specifically for children to move between two parents’ households, where families are separated.
If there is a dispute that cannot be resolved directly between you, or with the help of third parties, you could apply to the Court to vary an Order, suspend an Order on a temporary basis, or ask for a Prohibited Steps Order to restrict your ex-partner from certain actions.
Many Court Orders will already include provision for child care arrangements to be amended in accordance with any subsequent agreements reached between the adults, but the key point is that an agreement should be reached first, rather than one party unilaterally imposing what they think is right without reference to the other parent.
2. My ex has stopped me from seeing our children because of Coronavirus. What are my rights?
You can apply to the Court for a Child Arrangement Order which provides for your children to spend time or live with you, or to enforce an existing Court Order. However, it’s important to think carefully and get legal advice before doing so, because there are a range of potential routes which you can follow, that may or may not involve the Court, and a range of potential outcomes and issues that need to be considered with care.
In an ideal world, you and the other parent would be able to agree and make child-focused decisions together. For example, if direct contact isn’t agreed, because one household comes with increased health risks, you might want to think about Skype or Facetime as a short term alternative, where the children are old enough to interact in that way.
Agreements are not always possible, and whilst the Court can Order that children are made available, if you find yourselves unable to agree a way forward, do take legal advice before heading to the door of the Court as there are a whole range of ways that disputes can be resolved with support from one of our Family Law Solicitors.
3. Can I stop my ex-partner taking my children to large social events or on holiday?
Yes, in theory, but if they are already in their care, how can you control what they do? The answer is, you can’t. However, you can apply for a Prohibited Steps Order to restrict the other parent’s actions. These Court Orders limit a parent’s right to exercise their Parental Responsibility, and will only be made when no alternative Order is considered appropriate, so you should get specialist legal advice before you make an application.
At the moment, there are advisory restrictions placed upon travel and social interaction, but much of the advice from the Government is hard to police, meaning that if it is not followed, there isn’t very much being done about it. Whilst many events have been cancelled, there are still those that are not taking the current health crisis seriously, going out more than they should. With school closures, there may be the temptation to take children to national parks or on a camping holiday. That may, in many cases, go against the advice that is being given at the moment and so the chances are that the Court is likely to support a parent’s movements with a child being restricted, by way of a Court Order if necessary.
4. Do I need my ex-partner’s permission to take our children out of the country, in light of Coronavirus?
It depends. If you have a Court Order which says they live with you, then no, as long as the holiday does not last longer than 28 days. If you don’t have a Court Order, then permission will be needed from the Court, unless you and your ex-partner can agree.
You could consider applying for a Specific Issue Order to deal with custody of the passports, if one parent is refusing to hand them over, however, as many countries are restricting travel and many flights are grounded, it’s important to review your travel plans and think carefully before going on a holiday once the UK restrictions are lifted, in light of the increased global health risks for you and your children.
5. My grandchildren aren’t being brought to see me, to protect me from Coronavirus, but I want to see them. What can I do?
Even if you have a Court Order in place to see your grandchildren, the Court probably won’t enforce it, particularly if you are in one of the three high-risk categories the Government has identified. Try speaking with family about what they can do to help facilitate your ongoing relationship with your grandchildren. It is always best to agree a way forward but if that isn’t possible, we can help you try to find a sensible short term solution, such as Skype or Facetime contact, which may mean a Court application.
There are special rules surrounding grandparents and what Court Orders they can and cannot apply for, which we can talk you through where necessary.
6. Can we vary a Child Arrangement Order between me and my partner as an interim measure, until Coronavirus dies down?
Yes. Most Orders can usually be varied by agreement, but it’s best to get legal advice and something in writing, so the framework is clear, both in terms of what will happen now and in the future, when things return to normal.
7. My child’s school has closed, can I force my ex-partner to share responsibility for child care?
You’ll need to reach an agreement about how you will care for your child. You can’t make an application to Court to force a parent to care for a child if they’re not willing to. If the closing of your child’s school means you are caring for the child for more of the time, check the CMS calculator to see if that impacts the maintenance your ex is paying or try to agree with them an enhanced amount.
If your child’s in private education, check the position on the refunding of pre-paid school fees, which may help with child related costs in the short term.
8. I want to relocate with my child, but the country I plan to move to has a higher rate of Coronavirus. Can I still go?
Permission to relocate is always needed either from the remaining parent or the Court. We have strong success rates in terms of obtaining permission to relocate for those wanting to leave the country, but also in preventing relocation, when we act for the remaining parent.
The chances are that this health crisis will have abated by the time a Court gets around to dealing with a relocation application, as they can take many months (if not years) to resolve, so if you are thinking of relocating, it’s essential to take early advice and get your ducks in a row from the outset.
9. I want to vaccinate my child but my ex-doesn’t agree. What are my options?
This is no current vaccination for Coronavirus but Specific Issue Orders are available from the Court when disputes about medical treatment or other vaccinations happen, such as MMR or blood transfusions.
Divorce and Financial Issues
1. I’ve lost my job because of Coronavirus, but I recently agreed a Financial Order. What can I do?
There is a very real prospect of many people seeking to revisit financial settlements agreed in recent months, because of these extraordinary circumstances. In family law terms, a Barder event applies when a Court makes a Financial Order but afterward, there’s a dramatic change or event which changes the situation. The Court has set out the criteria which has to be met, in order to obtain permission to appeal out of time on the basis of a Barder event, as follows:
a) The event invalidates the basis for the Order or the fundamental assumption on which it was based, so that any appeal was certain or very likely to succeed;
b) The event has taken place within a short time period after the Order was made (in most cases less than a year but preferably much less);
c) That the application to appeal out of time has been made promptly after the event took place (so acting with some haste is important);
d) Granting permission to appeal would not unfairly affect any innocent third party (for example, if your home has been sold to an unconnected person).
The Court is keen to ensure that there is finality in family litigation, so that parties feel confident that they are able to move on and be sure that the cost and stress of litigation are behind them. The Court will decide these issues on a case by case basis. Whilst our Family Solicitors can advise you on whether to apply to set aside or vary any Order on this basis, we’d need to look at whether we think your case would satisfy the legal test or not in the first instance.
If the payment of spousal maintenance is the issue, you could make an application to vary the amount (upwards or downwards or to discharge it completely) depending upon your circumstances but again, it is important to take advice before pursuing any form of litigation, so that you can weigh up your prospects of success, the costs and the other associated risks.
2. Will my divorce be delayed because of Coronavirus?
Most likely, yes. The Courts already have a significant backlog and the rise in online Court hearings, whilst social distancing is mandatory could lead to many divorces falling to the back of the queue. In some cases we can apply to speed up the process. For example, if you’re terminally ill and wish to remarry your new partner before your death, for inheritance and estate planning reasons.
There are no guarantees that a Judge will agree with your reasons for applying and so it is important that your application is prepared with care, covering the right issues, to give you the best chance of it being granted.
3. Can I delay agreeing a Financial Order until I know my job is secure because of Coronavirus?
Yes, if you can agree this delay with your partner. You may also need the Court to agree to an adjournment, if you are already involved in the formal litigation process. Your application to delay or stay the proceedings could be contested by your ex-partner, particularly if the proposed delay means they have to continue paying enhanced maintenance or the mortgage on your home, as well as their own rent, for example, or if your ex-partner knows that their income or company share value is going to increase over the coming months. Entering into any sort of deal during the current health crisis comes with greater risks for many people, so it is important that you understand those risks (and the potential benefits in some cases) before agreeing terms.
If you can’t reach an agreement about the way forward, the Court can help you decide or you can propose more efficient ways to resolve your case, such as Arbitration or paying a private Judge to hear your case, when and where you want them to. You should remember that everyone’s circumstances are different and if you are going to propose delay, you need to be able to demonstrate your reasons for doing so, which should not be too difficult in the current circumstances.
4. My ex says they can no longer pay me maintenance because of Coronavirus. What are my options?
You could make an application to enforce maintenance payments, if the Court has jurisdiction to deal with this and your ex-partner is in breach. Where there is no income coming in, for example if your ex-partner has lost their job, in some cases the Court can require payment of maintenance from capital i.e. savings, but you should tread with care, as quite often the costs of these cases are high and there are no guarantees. A Family Lawyer can go through with you the exercise of weighing up the risks and give you clear guidance on strategy and your options, before you take the first step towards trying to recover what you might be owed.
If you’re not receiving child maintenance, you can make an application for the CMS (Child Maintenance Service) to recover this for you, but note that there are implications in doing so, which often come in the form of what is effectively an administration charge for using their collect and pay service.
5. Will my court case be adjourned because of Coronavirus?
This is happening more and more, as the health crisis continues. It is disappointing for those involved, but difficult to challenge in the circumstances. Adjournments can be agreed or imposed, but one of the Court’s objectives is to avoid delay, especially where children are involved, so if your case has been adjourned against your will, it is likely that the Judge had no other choice.
The Courts are now starting to operate paper, telephone and video hearings much more commonly, to cope with the crisis. Alternatively, if your case has been taken out of the Court list and you have no idea when it will be heard, consider whether Arbitration or paying a private Judge is a better way forward for you and your family.
The current situation will need to be closely monitored but it is likely, simply because of the disruption, that there will be more delays than anyone would like there to be. The plus side is, of course, that it will give you more time to reach an agreement, instead of a Judge imposing an outcome on you that you might not be happy with.
6. Can I take out insurance to cover spousal maintenance during the current and future health crises?
Yes, in some cases policies are in place to preserve financial security for recipients, where short term issues prevent maintenance from being paid but please get specialist advice as these can be expensive and may not cover Coronavirus related claims, as these are unforeseeable.
In many cases, where maintenance is payable, life insurance is also factored in, to provide a lump sum for those in receipt of maintenance in the event of the paying party’s death, which is a very real prospect in the current health crisis. If you are able to enter into a deal involving maintenance, be sure to explore this.
7. Will Coronavirus affect my monthly mortgage repayments?
This is likely, especially if you have a tracker mortgage in place, yes, because interest rates are changing. We have live cases where mortgage repayments have dropped or payment holidays have been offered, causing the parties to revisit financial support packages that were previously agreed, but beware that these effects are not likely to be long lasting or static, and so regularly revisiting your outgoings and communication with your lender will be key.
8. What impact can Coronavirus have on pension income and pension sharing on divorce?
Some pensions are hugely affected by market forces, whereas others, such as Public Sector Pensions are relatively immune. You should get expert actuarial advice. Lower stock market values will likely impact Defined Contribution and Money Purchase Scheme valuations and private sector Defined Benefit Schemes may experience enhanced deficits, which impacts on Cash Equivalent Transfer Values. Reduction in gilt yield will often result in increased Transfer Values for many private sector Defined Benefit Schemes.
We saw something similar happen post the Brexit Referendum, with many clients’ Transfer Values shooting up by significant amounts. We regularly instruct experts to prepare reports on pension value and income in the context of divorce and financial issues, to give client’s peace of mind, before agreeing how pensions should be shared.
- Travel Law
1. What can I do if I am due to travel but not sure if it will be cancelled?
In the first instance, check with your travel provider.
If you have a travel booking for later in the year, be patient as the situation is changing rapidly, and travel restrictions are currently in place on a temporary basis (currently until the 16th April 2020 – www.abta.com). The situation is changing daily, so stay in contact with your travel provider.
If Government advice against travel affects your holiday, contact your travel company to discuss the options.
If there is no Government advice against travel to your destination, you’re free to make the choice not to go, but there's likely to be no obligation on your holiday company to give you a refund. Normal cancellation charges will apply and you should check the terms and conditions of your booking.
Travel advice from the Government can be found on the Foreign and Commonwealth Office website.
Consult your travel insurer.
2. I am stuck in one of the countries who are on lockdown - how do I get home?
Follow the advice of local authorities. Your safety and security is the most important factor.
If you wish to leave the country you are in, contact your airline or travel company and your insurance provider. You may also want to seek guidance from the relevant UK embassy.
The organisation of assisted departure is only in exceptional circumstances.
Please bear in mind if the local authority where you are, proposes to quarantine you for your own protection, you should follow their advice.
3. My holiday has been cancelled due to the Coronavirus and I want to get my money back, what can I do?
Contact your travel provider and see what options are available. Also check the terms and conditions of your booking.
If your travel provider has said they will offer a cash refund, please be patient with them as they process this: they are likely to be dealing with an exceptionally high volume of enquiries.
Subject to terms and conditions of your contract, customers are normally entitled to a refund where a holiday is cancelled by the holiday provider. However the travel industry are seeking clarification from the Government that in the short term, if credit vouchers can be issued in place of refunds which can be exchanged at a later date for another holiday or an actual refund.
Depending on how you paid for the holiday (Debit or Credit Card) you could try and pursue a charge back through your bank or credit card provider. Also speak with your travel insurer to see if you are covered.
4. If I have had an accident whilst on holiday will my claim be affected by the measures which are put in place?
Please note delays are expected with any claims subject to foreign jurisdictions as each country has taken its own precautions to COVID-19.
As various medical agencies in different countries are extremely busy at this time, you may find it more difficult to obtain medical assistance. However it is advisable to seek medical advice if you have been injured in an accident.
Ensure you contact your travel insurer for guidance.
Ensure you keep any documents you are given by the treating hospital or other authorities.
It is advisable to seek legal advice as each country has its own statute of limitations for bringing a personal injury claim. Your holiday claim will become statute barred if proceedings have not been issued prior to the limitation period expiring. It is therefore important that if you decide if you wish to seek legal advice as soon as possible.
5. What happens if I booked hotels and flights separately, can I get my money back if it is cancelled?
You will need to contact your hotel and airline separately to request a refund or rescheduling if they permit this.
Check the terms and conditions of each booking, to see what options are available.
Some airlines are offering vouchers or rescheduling. Currently there is no obligation to accept this, but the situation is evolving and due to the pressure this will place on travel providers the government may introduce legislation to allow airlines to offer vouchers.
6. What if I get the Coronavirus from a hotel which is not taking the proper precautions?
If you believe you have contracted Covid-19 due to a lack of precautions from your hotel, you may have a potential claim against the hotel or tour provider. It is important you keep and document any evidence of this and keep a record of the parties you communicate with.
It is important to bear in mind different countries have in place different restrictions. Research into Covid-19 is still at an early stage and advice is likely to change as research continues. At the moment in this evolving situation it is difficult to predict whether liability will exist.
7. Have the Package Travel Regulations changed?
In light of the impact from Coronavirus the European Commission have relaxed the regulations.
Package providers must have insolvency protections to cover refunds and repatriation in case of bankruptcy.
The Commission is now encouraging customers to accept credit notes for a later booking or to be used for a full refund at a later date. ABTA are seeking guidance from the Government that they intend to follow the same approach as the European Commission.
Other Useful websites
If you want to talk to one of our specialist Holiday Claims Solicitors please call <span class="InfinityNumber clickable">08002605010</span> or get in touch online.
- Employment Law
1. Will I get paid if I’m self-isolating?
Statutory Sick Pay (SSP) is now accessible for eligible people who have been diagnosed with coronavirus or anyone who can’t work because they’re to self-isolating in line with government advice.
The new regulations (SSP (General) (Coronavirus Amendment) Regulations) came in to force on 13 March 2020. These new regulations mean that you can get SSP from the first day of your sickness or self-isolation, instead of the fourth day.
If you’re not eligible to claim SSP because you’re self-employed or you earn less £118 per week and you’re affected by Coronavirus, you can claim for Universal Credit or Contributory Employment and Support Allowance.
Contractual Sick Pay. The terms of your contractual sick pay should be set out in your contract of employment.
You may not be entitled to sick pay if you can work as usual, but ACAS has advised that it’s best practice for employers to pay their staff sick pay if they’ve been told to self-isolate.
2. What if I lose my job because of Coronavirus?
Even in the middle of the Coronavirus outbreak, your employer will still need to have a reason to dismiss you. This could include the business having to downsize or the collapse of the business.
If you lose your job under such circumstances, you may be entitled to a redundancy payment but if you’re an employee with at least two years’ continuous service with your current employer, you would usually be able to claim statutory redundancy pay. You can apply for statutory redundancy pay and unpaid wages online at Gov.uk or contact the Redundancy Payments Service by telephone on 0330 331 0020.
If your employer makes more than 20 redundancies at one location, with no consultation, you could be entitled to claim for a Protective Award. We can help you with this on a No Win, No Fee basis.
If you’ve been working for your employer for more than two years and you’re not a casual employee or on a zero hour’s contract, you have right to challenge the redundancy if you think you’ve been unfairly dismissed. If you think you’ve been unfairly dismissed, call and speak to one of our specialist Employment Law Solicitors.
3. What if the company I work for stops trading because of Coronavirus?
Government Instructed Closures. Some employers have been told to close by the government, including pubs, leisure centres, cafes, restaurants, theatres and cinemas. This list will almost certainly continue to grow.
Because of this, the Government has announced new financial support for employers. This will cover the majority of your wages if you’ve been sent home temporarily because your employer has been told to close and they can’t provide work.
Advice about this financial support is still being released from the government.
Use of Holiday Pay. Employers can tell you when you have to take your holiday if they need to, but of your employer does go down this route, they have to give you at least twice as many days’ notice as the amount of holiday you’re being told to take.
Lay-offs. Many employees will be laid off because of Coronavirus. Usually lay off can be a complex area which depends on the terms of a contract of employment. In the current situation, your employer may ask you to stay away from work as they are closed due to Government guidelines.
Because of this, you could be identified as being on a period of furlough, which means you can’t work through no fault of either party. The imposition of furlough would be allowed by as an implied term of a contract of employment in these very unusual circumstances.
The Government has announced that it will cover, through HMRC, 80% of normal contractual pay up to a maximum of £2,500 per month if you’re stopped from working. Many employers are topping up pay by the additional 20%, but if your employer doesn’t do that you won’t be able to make a claim.
Whilst this arrangement benefits many employees who can’t work, it doesn’t apply to you if you’re self-employed. You’d probably need to seek state benefit which is at a much lower level than standard pay.
For details see Furlough Leave and the Coronavirus Job Retention Scheme.
4. What do I need to know about working from home?
If you are working from home, you should be paid the same amount of money as usual as long as you are working the same hours. All of your usual terms and conditions of employment still apply – the only difference is that you’re working from home temporarily.
You have a responsibility to take care of your own health and safety whilst working from home. Your employer may have already asked you to complete a working from home risk assessment. If not, you should tell your employer about any health and safety risks in the home.
If you’re running up costs because you’re working from home, you should speak to your employer as they may have a policy about this.
You should also tell your mortgage provider and your home insurance policy provider to make sure there’s no reason that they can’t work from home.
ACAS guidelines say that it’s important to take regular breaks when working from home and that you should try to keep in regular contact with each other and with their manager. This can be using WhatsApp groups, Skype, FaceTime or anything else that means you can stay in touch.
5. What if I need to look after someone and can’t work?
Your employer should give you flexibility if you have to look after children because schools and nurseries are closed. This could also apply if you need to care for an elderly relative or a family member who has Coronavirus. In these cases, talk to your manager or your HR department who can probably agree a more flexible arrangement such as a change to working hours or flexibility with targets and deadlines.
If someone living in the same house as you shows symptoms of Coronavirus, you should follow the advice from the Government and self-isolate. You should be entitled to statutory sick pay.
You are allowed to take time off to look after someone else who doesn’t live with you, but there’s no statutory payment in place for this, so you should talk to your manager at work who can review any relevant policies.
- Wills & Probate
1. I don’t have a Will – can I still make one because of Coronavirus?
Yes you can still make a Will. Call and speak to one of our experienced team who can help you.
2. My circumstances recently changes and I didn’t change my Will before Coronavirus. Can I do it now?
Yes you can. It’s so important to keep your Will up to date so that if anything did happen to you, your wishes are carried out. Call and speak to one of our specialist Wills Solicitors who can help you.
3.What happens if I die and I haven’t made a Will?
If you die without making a Will, who inherits from your Estate will be decided by the Rules of Intestacy. If you were living with a partner and you weren’t married, they wouldn’t inherit under the Rules of Intestacy. That’s why it’s really important to make a Will so that you can be sure that your estate goes to who you choose.
4. I was in the middle of arranging Probate – will Coronavirus impact the Probate process?
Hopefully not, but we have to be aware that the Probate Registry (Court) could be delayed due to illness, self-isolation and social distancing measures. If we’re completing Probate for you, we want to assure you that we have excellent IT solutions which means we’re business as usual even though we’re working from home. If you have any worries or concerns, please speak to your case handler.
5. Will all the deadlines for Probate still apply in the Coronavirus pandemic?
We’re not really sure at this stage, but you should assume that they all still do apply.
1. I have a child with an EHCP. The Government advice is that my child will stay in school. How will this work?
How it will work is likely to vary and will depend on whether or not your child’s school will stay open. The Government has indicated that it wants as many schools as possible to stay open but also acknowledges it may not be possible due to staff shortages.
If not possible for the school to stay open, they have indicated the child would be asked to attend another school which is open. However, there is no indication that they will ensure that the school would be suitable and the Coronavirus Act includes provision that could remove the duty to ensure provision in Section F is provided and instead replace it with a requirement to essentially try their best to provide it. This significantly weakens the requirement for the provision to be implemented.
The part of the Coronavirus Act that does this has now been implemented, as the Secretary of State for Education has issued a Notice bringing these changes into effect. These changes will be in force from 1st May -31st May but could be extended past this time. For information on this change please see our FAQ article here.
If you have any concerns about any alternative placement that is provided/ the implementation of the EHCP we recommend you seek legal advice.
2. Can my child who has an EHCP only attend school once there has been a risk assessment?
Guidance has now been issued for these risk assessments. This sets out the factors that should be considered as part of the assessments. This includes, amongst other factors, if is sustainable for the parents to meet the needs full time and risks to siblings or family members in them being at home full time.
The guidance also recommends consideration of any equipment that might be required at home and how services, such a therapy, could be implemented at home.
The guidance also confirms that the views of the child or young person and their parents and carers should be considered as part of the risk assessment. The risk assessment should be carried out by the educational setting but should also include the Local Authority unless it is too urgent to.
When a decision is made that a child or young person is safe at home, the Local Authority and educational setting needs to make sure there is a support plan in place for them and their family understands this, before their attendance at the setting stops.
Local Authorities are required to review risk assessments if circumstances change, so make sure you update them if they do.
3. Is attendance for vulnerable children at school being monitored?
Attendance is being monitored and schools and colleges should continue to take their attendance register, but the latest guidance states that Local Authorities and schools will not be held to account for their attendance levels. However, schools should ensure they have processes in place to check on the welfare of any vulnerable child who does not attend on any day, where they would expect them to.
4. I have a child who was about to sit their GSCEs/A Levels, but we’ve been told exams are cancelled. What can I do?
The exam regulator, Ofqual and exam boards will be working with teachers to provide grades to students whose exams have been cancelled this summer. G
There is no indication yet as to any appeals process that might be in place if someone is not happy with the grades given.
University representatives have confirmed they will expect universities to be flexible but there are no further details regarding this yet.
5. Is there any support available to help children access education from home?
Devices will be ordered to help disadvantaged children and young people access online learning if:
- they are in year 10
- they receive support from a social worker
- they are a care leaver
and don’t otherwise have access to a device.
4G routers are also being provided to these children so they can learn from home.
Furthermore, major telecom providers are not charging for access to selected educational resources.
Devices and routers will be sent to schools and children’s social care teams who will contact individuals with advice on how to access them.
A list of online educational resources has been compiled by the Department for Education.
From 20 April 2020 the BBC will be providing daily lessons along with their enhanced education provision.
For children who are under compulsory school age, the Department for Education has released Hungry Little Minds, a campaign giving tips and practical activities to support early learning.
6. How will my child get to school if their school transport isn’t available because of Coronavirus?
If your child has an EHCP, is classed as being vulnerable or you are a key worker then arguably the duty to provide home to school transport still applies. Due to some children being asked to attend other schools it could be that children who previously weren’t eligible for home to school transport now are.
Local Authorities are being asked to review transport arrangements and make appropriate provision so children can reach school safely. If transport is required and is either refused or what is provided is not suitable, we recommend you seek legal advice.
7. My child was waiting for an assessment for an EHCP, but isn’t now at school. Is there anything I can do?
Contact your SEN officer to see if they can still complete the assessment. If they cannot assess without seeing your child you could consider if you are happy for them to assess your child at home or at another venue, put please make sure you consider the risks in doing so with regards to coronavirus.
If this is refused or if a decision on whether or not to carry out an assessment or whether or not an EHCP should be issued, seek legal advice.
8. Are the deadlines in relation to the EHCP process still in place?
New regulations have been issued which will apply from 1 May to 25 September 2020. These regulations mean there will be some temporary changes to the timescales that apply to EHCP processes. They state that where it isn’t possible for Local Authorities to meet these deadlines because of Coronavirus, Local Authorities will need to complete the process as soon as they can.
For more information on which deadlines have been effect by this change please see our FAQs.
9. Can my child go to school?
The Government have recently set out plans that from the week commencing 1 June more children will be allowed back to school. The key points of this plan are:
- Primary schools are to let children in nursery, reception, Year 1 and Year 6 go to school. Students are to be taught in small groups.
- Secondary schools, sixth form and further education colleges will offer face-to-face provision to Year 10 and Year 12 students who are taking exams next year. This is not expected to be full time provision and students are to attend in small groups.
- Special schools, special post-16 institutions and hospital schools are expected to take a phased approach to allowing more children back to school.
- The government hopes to allow all primary year groups back to school for a month before the summer holidays. This is not guaranteed and will be kept under review.
- Those who have been classed as ‘clinically extremely vulnerable’ due to pre-existing medical reasons and fall into the year groups above are not expected to attend school, and support should continue at home.
- Every setting should carry out a risk assessment before opening
- Parents will not to be fined for non-attendance
The government are encouraging all students in the groups above to attend. If your child can go to school as outlined in the groups above but you don't want them to, you should notify the school. If you experience any problems in relation to this you should seek legal advice.
10. My child is eligible for free school meals but isn’t attending school – what are my rights?
Head teachers are being given the discretion to decide how best to support the families in the area. This could include providing food onsite, arranging deliveries or purchasing vouchers to give to families.
If your school has not yet contacted you to discuss the arrangements for your child, then we recommend you contact them directly.
11. What will happen to my vulnerable child if we have to self-isolate for 14 days?
Local Authorities are being expected to prioritise support for the most vulnerable and their guidance simply states this will include undertaking necessary visits whilst taking appropriate infection control measures. If you need to self-isolate and need additional support whilst doing so, we recommend you seek legal advice.
12. Have parents received primary school offers for 2020 admissions on National Offer Day?
The guidance confirms that National Offer Day continued as expected on 16 April 2020. Therefore, if your child is due to start school in September and you have not received an offer of a school place, we recommend you urgently seek legal advice. If you have received an offer but you’re not happy with the placement, please see our admission appeal advice.
13. Has the process relating to Governing Bodies considering reinstatement of excluded pupils and the process for Independent Review Panels, regarding permanent exclusions changed?
The current legislation in relation to exclusions remain unchanged. The updated guidance on Coronavirus states that it is up to Governing Boards and arranging authorities to continue to take reasonable steps to make sure meetings are arranged for when all parties can attend, which could be through the use of technology instead of being in person.
- Care Proceedings
1. Are you still open during the current lockdown?
Although our offices are closed we are still working as normal. If you’re an existing client, you can speak with your solicitor on the phone numbers that you already have. If you’re a new client, you can speak to somebody in the Child Care proceedings team on our free phone number 0800 260 5030
2. Can I see my solicitor?
We can’t meet with you face to face, but we’re all working remotely and can take your calls as normal. If you do want to have a video call, we can use Zoom or Skype for Business to do this.
3. I've got a court hearing coming up. Will this still go ahead?
The Courts have had to adapt their ways of working and most Court hearings are taking place remotely. Some Courts have decided that more complex hearings, or hearings due to last several days, may have to be postponed.
Most hearings are taking place using video conferencing facilities such as Zoom or Skype, which can be accessed through smart phones, but some are taking place by voice calls only.
The Courts are taking a flexible approach and will take into account your individual needs as far as they can when putting hearing arrangements in place. If you’re worried about how you are going to take part in a court hearing, please speak to your solicitor.
4. I've got a pre-proceedings meeting coming up. Will this still go ahead?
Pre-proceedings meetings are now taking place through video calls or voice calls. If you have to attend a pre-proceedings meeting, sometimes known as PLO meeting, and you’re worried about how you will take part, speak with your solicitor.
5. Will my case be delayed as a result of lockdown?
Social services and the Courts are finding ways of working around the problems caused by the lockdown but there are inevitably some challenges which can’t be overcome.
Although some social workers are continuing to carry out their assessments of families by speaking on the phone and using video calls, some more specialist assessments do need face to face contact. Many medical experts, such as psychologists and psychiatrists, feel that they can’t complete their assessments remotely and need to meet with parents and children face to face.
There are likely to be some delay in these cases, which may mean that Court hearings have to be postponed. Other Court hearings which are particularly complex or due to last several days may also be postponed.
If you are worried about delay, speak to your solicitor who can advise you.
6. My child's in foster care. Can I still have contact visits?
In general, social services are no longer organising face to face contact because of the risks to children and social work staff, and because of staff absences.
If your child is in foster care then social services still have a duty to allow “reasonable contact”.
Most social services departments are trying to make alternative arrangements for contact to take place remotely, using voice or video calls. You can read more detailed information about contact with your child in care here, but if you have any concerns about this please speak to your solicitor.
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Simpson Millar Solicitors are a national law firm with over 500 staff and offices in Bristol, Cardiff, Lancaster, Leeds, Liverpool, London and Manchester.