Covid-19 Changes in SEND Law Q&A

Author:
Amy O'Shea
Public Law Paralegal
Date:
01/05/2020

Following the outbreak of Covid-19, the UK Government has introduced a number of temporary changes to the law around Education, Health and Care Plans (EHCP). This includes changing the duty on Local Authorities and health commissioning bodies to secure and arrange provision in an EHCP. Also the timeframes on these bodies have been modified in relation to key EHCP processes.

Q: If the provision in my child’s EHCP is not in place at the moment, can I challenge the Local Authority or health commissioning body?

Before the Covid-19 outbreak, you’d be able to challenge the Local Authority or health commissioning body by showing that the provision was not in place. But due to changes made from 1st May 2020, there is no obligation that these bodies ‘must’ secure or arrange the provision – now they just have to show they have used ‘reasonable endeavours’ to secure or arrange the provision.

This means that if the provision is not in place, and the Local Authority or health commissioning body can show they used their reasonable endeavours to try and put it in place, and you won’t be able to challenge them.

Q: What does ‘reasonable endeavours’ mean?

According to the Government guidance, reasonable endeavours means that Local Authorities and health bodies must consider what they can reasonably provide in the circumstances. They must consider this for each child or young person with an EHCP.

While we’re all facing uncertain times at the moment, Local Authorities and health bodies should not be using Covid-19 as an excuse not to put provision in place for children with EHCPs. They should be considering alternative arrangements and thinking creatively of ways to secure the provision in the current climate.

This would show that they have truly used their ‘reasonable endeavours.’ They must consider this for each child and not use a blanket policy.

Q: What are possible alternative arrangements where provision in an EHCP cannot be secured?

The Government guidance has a number of examples of alternative arrangements, such as:

  • Occupational therapists video linking to family homes and modelling exercises to parents
  • Widening personal budgets so parents can buy equipment to support home learning
  • Loaning specialist school equipment to parents
  • Counselling delivered over the phone.

These are just a few of many examples.

Whether a Local Authority has used reasonable endeavours will depend on your individual situation. The right reasonable endeavours could depend on:

  • The circumstances of the child
  • What is stated in the EHCP
  • The local context

Our expert Education Solicitors and SEN Lawyers can advise you on your ability to challenge Local Authorities where provision is not in place at this time.

Q: How long will these changes last?

These changes will be in force from 1st May to 31st May. However, the Secretary of State for Education has the power to issue a further notice, which would extend this period. At this moment in time, it is not clear if they will extend this period or not.

Q: Can I challenge a Local Authority for delays in respect of EHCP processes?

Under SEND law, there are specified timeframes for a number of processes relating to EHCPs.

For example, a Local Authority must normally decide whether to proceed with an Education, Health, Care and Needs Assessment as soon as reasonably practicable (possible) after receiving a request for assessment. This must be within 6 weeks. If the Local Authority does decide to assess, it must then issue the plan as soon as possible and within 20 weeks after the request.

Usually, if a Local Authority fails to meet these legal timeframes you would be able to challenge them for their failure.

But the changes to the EHCP law mean that if it is not possible to meet these timeframes because of the incidence or transmission of Coronavirus, the Local Authority or other relevant body will have to complete the process as soon as they can around Covid-19 (or in line with any other timing requirement set out in SEND law).

Q: Does this mean that it is no longer possible to challenge the Local Authority for failure to meet the specified timeframes?

No. The timeframes are only modified in cases where it is not possible to meet the specific timeframes because of the incidence or transmission of Coronavirus.

If the Local Authority must be able to show that it is both:

  • Not reasonably practicable/impractical to meet the timeframes
  • The reason it is not reasonably practical/impractical is because of incidence or transmission of Coronavirus

If they cannot prove both of these issues then they will need to meet the specified timeframes as normal. Even if they can show this, they will still need to complete the process as soon as they can.

Q: What does ‘not reasonably practicable’ or ‘impractical’ mean?

These are two separate tests. Whether the test of ‘not reasonably practicable’ or ‘impractical’ applies depends on which EHCP process is in question.

The Government has not provided any guidance on the difference between these two tests. But one example could be that there are staff shortages as a result of from Coronavirus.

The answer will depend on what stage of the EHCP process is in question and the Local Authority or health body’s specific circumstances.

Our expert Education Lawyers can advise you on whether you can challenge your Local Authority for delays to EHCP processes during this uncertain time.

Q: Which EHCP timeframes have been affected by the changes?

The processes affected include:

  • Responses to requests for Education Health Care Needs Assessments
  • Requests to re-assess Education Health Care Needs Assessments
  • Letting you know about decisions of whether to issue plans
  • Preparation and issue of plans
  • Annual Reviews
  • Letting you know about decisions following annual reviews, whether to continue the EHCP in its current form, amend it or cease to maintain it
  • Amending a plan following Annual Review
  • The timeframe for getting a mediation certificate and around the mediation process
  • The transfer of EHCPs to a new Local Authority and change of health commissioning body
  • Compliance with certain SEND Tribunal Orders
  • The actions that the Local Authority and health commissioning body must take when the SEND Tribunal makes non-binding recommendation around the health and social care matters within an EHCP

Q: Will Annual Reviews still go ahead?

Yes. The Secretary of State has the power to issue a notice that could outline that there is no longer a duty to conduct annual reviews. But he has not yet issued this notice, so at the moment local authorities must still conduct annual reviews. These could be done by phone or video link.

However the timeframes for annual reviews have been affected by the changes to the law. So where it is impractical for a Local Authority to complete an annual review for a reasons relating to the incidence of transmission of Coronavirus, then the Local Authority must complete it as soon as they can.

The timeframes to produce a written report, to notify of a decision and to amend following an annual review are also affected.

Q: Are Transfer Reviews affected by the changes?

The timeframes for transfer reviews haven’t been affected by these changes.

Transfer Reviews should have already taken place. If a transfer review has not yet taken place, you will likely be in a position to challenge your Local Authority for their failure to comply with the specified timeframes.

Q: How long will these changes last?

The changes outlined above are in force from 1st May to 25th September 2020.

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