Does the Coronavirus Act allow the government to change any laws relating to special educational needs?

On Monday 23 March, the Prime Minister imposed a lock down throughout the UK. 

Schools and colleges and other providers were asked to stop classroom delivery of education and training from Monday 23 March for all ages of learners, but stay open for a select number of pupils. 

Schools and colleges are still open to pupils whose parents are key workers and those who are vulnerable. For everyone else, learning has moved online. 

Those schools and colleges that remain open have a skeleton staff in place to provide support. Vulnerable children are defined as including those with safeguarding and welfare needs, those on child in need and child protection plans, ‘looked after’ children, young carers, disabled children and those with an Education, Health and Care Plan (EHCP). Children without EHCPs or whose parents are not classified as key workers are expected to remain at home.

Whilst all vulnerable children, including those with EHC plans, are entitled to go to school, the Secretary of State has confirmed that they are not required to attend school if their parents want them to stay at home.

The government has published a full list of key workers, whose children are entitled to continue at school/college. This includes key staff in local authorities and specialist education professionals required to remain active during the COVID-19 to help deliver the government's response. 

Residential special schools, boarding schools and special settings will continue to care for children wherever possible, though there may be some situations where due to staff absence or other reasons it is not practicable for a school to remain open. 

For those children without EHCPs or those going through the EHCN assessment process the situation is less clear, and further clarification is required.

EHC plans and provision: current status

EHCP processes continue as usual. Individuals can still request an EHC needs assessment and challenge decisions in the EHC Tribunal. The existing legal duties and deadlines in respect of EHCPs will continue to apply, though understandably there may be some logistical difficulties in local authorities meeting those duties with reduced staff.

For any appeals relating to EHCP processes going before the First-tier (SEND) Tribunal, hearings are conducted on paper or by telephone and, where possible, video where the technology permits. If parties do not have a reliable telephone or internet service available in their homes, it may be possible to arrange to use the IT equipment or telephones at their nearest Courts and Tribunals hearing venue.

Key points to note from the Coronavirus Act 

The Act allows the government to grant wide powers which directly affect the legal duties and entitlements of disabled children and those with special educational needs.

For example, the Secretary of State can modify or disapply the following:

• The duty to secure SEN provision and healthcare provision in accordance with an EHCP (currently established in s.42 of the Children and Families Act (CFA) 2014). The Secretary of State can vary this duty from being an ‘absolute’ duty to a ‘reasonable endeavours’ duty. What this means in practice is that the local authority or CCG will only have to show they’ve used reasonable endeavours to discharge the duty, which is a lower threshold than they currently have to meet in showing that they are providing the provision that is necessary for children as specified in their EHCPs.
• The duty on schools and other institutions to admit a school where it is named in Section I of a child’s EHCP (s.43 CFA 2014.) 
• The requirement of local authorities to take action in relation to a failure to secure regular attendance at school.
• The duty to carry out an annual review of an EHCP (s.44 CFA 2014)

The intention behind these additional powers is to help local authorities, educational institutions and childcare providers operate at a service level which differs from their usual practice in response to the pressure caused by the outbreak of Coronavirus, without being in breach of regulatory requirements.

However, they are far-reaching and are likely to have a real knock-on effect on children with special educational needs and disabilities, who will not be entitled to the same standard of provision they currently receive. 

Need more information?

This article was written by Caroline Barrett and Jennifer Wright.

Irwin Mitchell have a team of education law specialists who would be happy to discuss any specific queries regarding the guidance.  Further information can be found here https://www.irwinmitchell.com/business/sectors/education/imeducate.