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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 original Notice that brought in these changes into force lasted until the 28 May 2020. However, on 30 May the Secretary of State for Education issued a new notice extending these changes until 30 June.

 

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 modifies section 42 of the Children and Families Act 2014. This temporarily relaxes 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 starts at the beginning of 1 May 2020 and were 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 the same day (1 May 2020) The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 came into effect. These Regulations temporarily 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 four regulations changed are:

The 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 do not mean there is a complete removal of all duties, it is still likely to have a significant impact on the lives of children and young people with EHC plans and their families.

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 endeavours” is a significant downgrading.

The requirement on authorities to use their ‘reasonable endeavours’ to secure or arrange the provision for each child or young person in the current circumstances applies for the duration of the notice period, i.e. from 1 May until 31 May 2020. This has now been extended until 30 June. This may lead to little change for some people or more change for others depending what “reasonable endeavours” amount to in those circumstances.

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

  • Families must be involved in changes to EHC plans.
  • LAs should provide reasons for any differences between the provision in a child or young person’s EHC plan and what is actually provided.
  • 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.

As of 1 June 2020, all children classed as "vulnerable", which includes children with EHC plans, are expected to go back to school, as long a risk assessment has been completed or updated for each child. However, as the Notice has now been extended until (at least) 30 June, it means each of these children will not have the legal protection of their EHC plans. Instead of the specific legal duty on local authorities and CCGs to meet the needs included in these EHC plans the requirement will be to use “reasonable endeavours” to meet the needs.

 

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 30 June 2020. However, it could be extended again past 30 June.

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.