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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. Welsh Ministers gave their consent to these changes.

Included in the Act are temporary emergency powers to enable Welsh Ministers, where necessary, to modify the legal requirements on local authorities in fulfilling their duties in relation to SEN. This includes a relaxation of the legal duty on Local Authority to arrange the provisions in the Special Education Needs (SEN) Statement.

Wales is currently in progress of reforming their SEND laws, moving from a Special Educational Needs (SEN) system to Additional Learning Needs (ALN). According to the Welsh government, they are continuing “to work towards the successful implementation of the Additional Learning Needs and Education Tribunal (Wales) Act 2018” which should be implemented by September 2020.

What is a Special Education Needs (SEN) statement?

Under the Welsh education system, children and young people with “more complex needs” might have a statement of special educational needs, a SEN Statement. This is a legal document which sets out all of the child/ young person’s special educational needs and all the additional help that will be given to meet those needs. The local authority is responsible for ensuring that all the educational help in the statement is provided.

Why might SEND Legislation in Wales be 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 legal duties on Local Authorities in relation to SEN Statements to be relaxed when services are facing pressure due to Covid-19.

These changes are not yet in force in Wales. The Welsh government has said that they are “considering if we need to apply these powers in Wales and will issue information around this as soon as possible.” Similar changes in England are already in force, see our BIHR Explainer- Coronavirus Law & Policy: Changes to SEND Law (England) for more information on the changes in England.

 Which changes can be introduced?

The Coronavirus Act allows the following main changes to be made to SEND laws in Wales:

  • The duty, under the Education Act 1996, that requires local authorities to arrange that the special educational provision specified in the SEN statement is changed to a duty to “use reasonable endeavours” .
  • The duty, also under the Education Act 1996, to admit a child/ young person to the school named in their SEN statement is changed to a duty to “use reasonable endeavours” .
  • The duty to assess a child/young person’s educational needs at request of child’s parent is changed to a duty to “use reasonable endeavours”.
  • The duty, under the Learning and Skills Act 2000,that requires Welsh Ministers to arrange an assessment of a person with SEN in particular circumstances is also changed to a duty to “use reasonable endeavours” .

These changes are not yet in force.   

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

These changes are not yet in force in Wales, however, the Welsh government has said that they are “considering if we need to apply these powers in Wales”. Similar changes have already been made to SEND laws in England. If these changes are implemented in Wales, it is likely to have a significant impact on the lives of children and young people with SEN and their families.

SEN statements 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 meet the needs included in these SEN Statements to the requirement being to use “reasonable 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 yet in force. As mentioned previously, the Welsh government has said that they are “considering if we need to apply these powers in Wales and will issue information around this as soon as possible.”

We will update this information if/when the Welsh government decides to make these changes.

Currently, is unclear on how the Covid-19 pandemic may affect the implementation of the reform of SEND laws in Wales. However, the Welsh government, have stated that they are continuing “to work towards the successful implementation of the Additional Learning Needs and Education Tribunal (Wales) Act 2018” which should be implemented by September 2020.  

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.