You can download this Explainer as a PDF here.

In response to Covid-19, the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020. The Coronavirus Act includes changes to health and care legislation in Scotland as well as England, Wales and Northern Ireland. Northern Irish Ministers gave their consent to these changes.

Included in the Act are temporary emergency powers to enable the Department of Education in Northern Ireland; to issue a Notice which modifies legal duties, in Special Education Needs (SEN) legislation. This involves a relaxation of the legal duty on the Education Authority; Schools; Boards of Governors of schools; Health and Social Care Authority; and parents to a new duty to make their best endeavours to meet their original duty, under the where they cannot comply with the original duty is attributable to the outbreak of coronavirus in Northern Ireland.

On 9 April 2020, the Department of Education in Northern Ireland issued the Coronavirus Act 2020 Temporary Modification of Education Duties (No.3) Notice (Northern Ireland) 2020, “switching on” the relaxation of these duties. However, the Notice only applied for 28 days, meaning the relaxations were “switched off” again on 7 May, meaning the original (pre-Notice) legal duties apply again. However, these relaxations can be switched on again if a new Notice is issued.

Which laws are affected?

The Coronavirus Act 2020, allows the Department of Education in Northern Ireland; to issue a Notice which relaxes the legal duties in Part II of the Education (NI) Order 1996 and the Education (Special Educational Needs) Regulations (NI) 2005.The duties around assessing the needs of children/ young people with SEN and meeting their needs are affected.

When a Notice is issued it means that various duties in these two law, on the Education Authority; Schools; Boards of Governors of schools; Health and Social Care Authority, relating to the assessment and provision of special education needs are relaxed to a new duty to make their best endeavours to meet their original duty.

However, as the Notice issued on 9 April was only for 28 days, the original legal duties have returned.

Why was SEND Legislation in Northern Ireland 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 allow the Department of Education in Northern Ireland; to issue a Notice which of the legal duty on the Education Authority; Schools; Boards of Governors of schools; Health and Social Care Authority; and parents to a new duty to make their best endeavours to meet their original duty, under the where they cannot comply with the original duty is attributable to the outbreak of coronavirus in Northern Ireland.

On 9 April 2020, the Department of Education in Northern Ireland issued the Coronavirus Act 2020 Temporary Modification of Education Duties (No.3) Notice (Northern Ireland) 2020, “switching on” the relaxation of these duties. However, the Notice only applied for 28 days, meaning the relaxations were “switched off” again on 7 May, meaning the original (pre-Notice) legal duties apply again.

However, relaxations can be switched on again if a new Notice is issued.

Which changes can be/ were introduced?

The Coronavirus Act 2020 Temporary Modification of Education Duties (No.3) Notice (Northern Ireland) 2020, issued on the 9 April 2020, replaced all statutory duties in the following two laws with a duty to duty to make their best endeavours to meet their original duty.

As the time period for the Notice has already passed, the original duties in the above two laws apply again.

However, under the Coronavirus Act, the Department of Education in Northern Ireland could issue a new Notice which could again relax these duties.

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

These changes are no longer in force in Northern Ireland, however, the legal duties can be relaxed again if a new Notice is issued.

These legal duties are there to ensure that children or young people’s special educational needs are met. The move from a specific legal duty on local authorities to assess meet children and young people’s to the requirement being to use “their best endeavours” is a significant downgrading.

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 not currently in force.

As mentioned above, on 9 April 2020, the Department of Education in Northern Ireland issued the Coronavirus Act 2020 Temporary Modification of Education Duties (No.3) Notice (Northern Ireland) 2020, “switching on” the relaxation of these duties.

The Notice only applied for 28 days, meaning the relaxations were “switched off” again on 7 May, meaning the original (pre-Notice) legal duties apply again. However, these relaxations can be switched on again if a new Notice is issued.

We will update this information if/when the Department of Education in Northern Ireland decides to issue a new Notice.

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 Northern Ireland Explainer series here:

1. First version