4 August 2020

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On 1 May 2020, the UK government introduced temporary changes to some of the laws on special educational needs and disability (SEND). These changes affect the legal duties around, and timescales for, Education, Health and Care (EHC) Plans for children and young people. 

The changes involved a Notice about Education and Health Care plans given by the Secretary of State for Education, and new amendment Regulations changing timescales for Local Authorities and Health Groups around Education and Health Care assessments and plans. We’ll explain the changes more later in this Explainer, but the most important update is that the Notice, which had been reissued monthly since 1 May 2020, was not reissued on 31 July 2020. This means the Notice is no longer in force, and the duty it relaxed is now back in force. The amendment Regulations are still force however, so the changes to timescales and similar are still in place.

What are EHC plans? 

An EHC plan is a legal document that describes a child or young person's special educational, health and social care needs. It explains the extra help that will be given to meet those needs and how that help will support the child or young person (aged 0-25) to achieve what they want to in their life.

Local authorities or health commissioning bodies (CCGs) have a duty to secure or arrange the provisions set out in EHC plans and they must review them each year.

 

Why has SEND Legislation been changed?

In late March the UK government presented the Coronavirus Bill to parliament, asking them to approve possible suspensions to several laws about people’s care and support needs during the pandemic. The Government said these changes may be necessary because many public services would face significant pressures due to Covid-19 and the effects the pandemic may have on staff and resources. Parliament passed this law, the Coronavirus Act on the 25 March 2020.

One part of the Coronavirus Act deals with SEND laws and allows some changes to be made. These basically allow the legal duties on Local Authorities and CCGs in relation to EHC plans to be relaxed, when services are facing pressure due to Covid-19.

The Government has said that these changes allow LAs and CCGs to “deploy their resources more flexibly to respond to the coronavirus (COVID-19) outbreak and focus their remaining resources on those whose need is greatest”.

 

Which changes were introduced?

On 1 May 2020 the Secretary of State of Education published a Notice which modified section 42 of the Children and Families Act 2014. This temporarily relaxed the legal duty on local authorities or CCGs to secure or arrange the provision set out in an Education, Health and Care (EHC) plan down to a duty to use ‘reasonable endeavours’. This change to duties started at the beginning of 1 May 2020. They were initially due to finish on the 31 May 2020, however on 30 May the Secretary of State for Education issued a new notice extending these changes until 30 June. On 29 June, a third notice, a copy of which can be found here, was issued which extended these changes until 31 July 2020.

Updated Government Guidance tells us that, “On 2 July the Secretary of State announced that, unless the evidence changes, he will not be issuing further national notices after 31 July to modify this duty, but will consider whether any such flexibilities may be required locally to respond to outbreaks.” Following this, there has been no new Notice issued. As a result, the duty to provide for the provision in Education, Health and Care plans is back in place: the “local authority must secure the specified special educational provision for the child or young person” (section 42 Children and Families Act).

Also on 1 May 2020, The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 came into effect. These Regulations temporarily (until 25 September 2020) amend four sets of Regulations that specify legal timescales applying to LAs, CCGs and others, mainly around processes relating to EHC needs assessments and plans.

The 4 regulations affected are:

  1. The Special Educational Needs and Disability Regulations 2014
  2. The Special Educational Needs and Disability (Detained Persons) Regulations 2015
  3. The Special Educational Needs (Personal Budgets) Regulations 2014
  4. The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017

The Coronavirus Act 2020 allows for some other changes to be made by the Secretary of State for Education, including the removal of the legal duty for schools named on a child’s EHC plan to admit that child or young person, meaning that they may have to go to a different school. This legal duty has not yet changed.

The Government Guidance on changes to SEND law to the changes makes clear that where a school, college or other setting is temporarily closed, they must still admit the child or young person. In the case of a school or college, the child or young person must be placed on the roll and treated in the same way as other pupils or students in the setting.

 

What does this mean for children and young people with EHC plans (and their families)?

Whilst the changes made on 1 May did not mean there was a complete removal of all duties, it is still likely to have had a significant impact on the lives of children and young people with EHC plans and their families. While the duty to meet needs is back, the timescales for the processes involved in meeting these needs are still relaxed until 25 September 2020.

EHC plans are there to ensure that children or young people’s special educational, health and social care needs are met. The move from a specific legal duty on local authorities and CCGs to meet the needs included in these EHC plans to the requirement being to use “reasonable endeavors” was a significant downgrading. The duty to meet these needs has now been brought back into force, so children and young people should now expect to have their needs met, although there may be some delays to timescales. Where there are delays, the children and families should be informed.

The requirement on authorities to use their ‘reasonable endeavors’ to secure or arrange the provision for each child or young person in the current circumstances applied for the duration of the notice period, i.e. from 1 May 2020 until 31 July 2020. This may have led to little change for some people or more change for others depending what “reasonable endeavors” amount to in those circumstances.

The Government Guidance on the changes makes some key points and clarifications:

  • If an Education, Health and Care plan process with a statutory timescale begins where a delay relating to Covid-19 is likely, LAs should advise the parent or young person of this.
  • LA and CCGs must consider the child/ young person’s (or their families’) views as a key consideration when deciding what provisions must be secured or arranged.

 

Which Human Rights Are Involved?

The Human Rights Act protects our right to an effective education within the UK's existing educational institution (Article 2, Protocol 1). This relates to primary, secondary and higher education. Under the Human Rights Act also there is also the right be free from discrimination in the enjoyment of our human rights (Article 14). The right not to be discriminated against must be used with another right in the Human Rights Act. At BIHR we call it a 'piggy-back' right. This means that children and young people with special education needs should not be discriminated against when trying to access an effective education.

Additionally, the right to respect for private and family life, home and correspondence (Article 8) for both children/young people and their families is relevant. This right includes those to be involved in care and treatment decisions, support needed to participate in the community, maintaining significant relationships and respecting where people live.

What happens now?

The above changes are now in place. The temporary relaxation of the legal duty on local authorities or CCGs to secure or arrange the provision set out in an EHC Plan down to a duty to use ‘reasonable endeavours’ is in place for the duration of the notice. This is now until 31 July 2020. However, it could be extended again past this date. 

The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 which makes changes to legal timescales in processes relating to EHC needs assessments and plans will stop having effect on 25 September 2020. The Secretary of State must also review the effectiveness of these Regulations during the period (1 May – 25 September).

 

Where can I find more information?

 

 PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.

You can download PDFs of our previous versions of this SEND in England Explainer series here:

  1. First version 

  2. 1 June 2020

  3. 30 June 2020

  4. 4 August 2020