What is the status for SEN children during the national lockdown?

As everyone will be aware the UK entered a further national lockdown on 5th January 2021, which resulted in the closure of schools across England and Scotland (schools in Wales are scheduled to return on 18th January 2021, however a further Welsh Government broadcast is scheduled where this could change). But where does this leave our most vulnerable children? Especially the children who have Special Educational Needs?

The government’s main response to the closure of schools is for learning to be delivered on a remote distance learning basis but clearly this is not appropriate for children who have special educational needs. Alternatively, they suggest that vulnerable children can continue to attend school and have stressed that schools will remain open for this purpose, including some specialist schools and residential schools. 

It is clear that SEN children shall continue to be provided with the opportunity to attend their school or specialist setting and the Local Authority still has an obligation to provide support as is set out in a child’s EHC Plan. Any temporary changes that were made to the Children and Families Act 2014 during 2020 have now expired, and the current guidance supplied by the government does not indicate that any further amendments will be made.

Similarly, S.42 of the Children and Families Act 2014 continues to be enforceable and the Local Authority must ensure they comply with their legal obligations in accordance with this statute. S42 sets out the local authority’s duty to secure special educational provision and health care provision in accordance with EHC Plans, and applies where a local authority maintains an EHC plan for a child or young person.

Timescales relating to the EHC process remain in force as well. 

To clarify, the Local Authority must notify you of their decision to conduct an EHC needs assessment within six weeks. If the Local Authority agrees to issue a draft EHC plan they have a further four weeks to finalise the EHC plan (totalling a period of 10 weeks from the start of the assessment). If the Local Authority decides not to issue an EHC plan you have two months from the date of this decision in which to appeal. 

If a draft EHC plan is issued, then you must be provided with two weeks in which to comment on the contents of the draft plan and state a preference for school placement. The Local Authority should then consider the comments and issue a final EHC Plan. The maximum statutory time frame that the transfer process must take is 18 weeks. If a Local Authority exceeds this, then they could be acting unlawfully.

Annual Reviews of EHC plans shall continue to take place and must be held virtually. The Annual Review process remains unchanged. The Local Authority must issue a decision notice within four weeks of the annual review date indicating whether it will cease, amend or maintain (make no amendments to) the EHCP. If the Local Authority agrees to amend the EHC plan, it must issue a proposed amended EHCP within eight weeks of the decision letter.

Appeals remain virtual for the foreseeable future. The courts have a well-established system in place, whereby parties log in to a virtual hearing. Whilst there are obviously some pitfalls, this has meant that SEND tribunals have continued and, in some respects, there have been fewer adjournments based on court space/time. 

Many of you will potentially be concerned about whether assessments of your child can continue to take place during this lockdown? The answer is yes; Educational Psychologists are considered as critical workers and were named by the Department of Education as “specialist educational professionals who must remain active during the COVID-19 response.” Whilst many will work from home, opting for remote platforms, some are still attending offices for face-to-face appointments provided they maintain appropriate social distancing and PPE. It is advisable to check with your local council first to see whether they can facilitate face-to-face meetings. Occupational therapists also continue to be classified as key workers and assessments should still take place where possible. In some cases it may not be possible or necessary for this to take place on a face-to-face basis and so remote alternatives are being implemented. Please note that assessments carried out during the COVID-19 crisis can be redone or reviewed when things return to normal, if it is felt necessary and appropriate. 

For Speech and Language Therapists, the RCSLT are still encouraging therapists to make contact with the local authorities and schools they work in, and the families of the children they support, to discuss how information, advice and support can continue to be provided. This includes considering the use of telephone, video conferencing and home visits where necessary. Risk assessments should be undertaken to protect the safety of everyone as far as possible.

There is an ambiguous area around whether or not you will be penalised if you remove a SEND child from their placement, and start providing at home. Previously, in 2020, if you removed your SEND child from their placement, you would not be entitled to any provision support in the home, as you would be deemed to be electively home educating. The importance here is to look at creative measures and whether interim EOTAS (Education Other than at School) packages need to be devised and approved. EOTAS packages includes tutoring etc and is funded by the Local Authority. The difficulty is that a Local Authority does not in law have to agree to fund a EOTAS package as a result of lockdown, and as such, if they deem your child can attend their placement then there is no real recourse to have the Local Authority agree to funding a home-based package.

For further information or if you require assistance, please contact our education department on 0117 9350 939 or email info@watkinssolicitors.co.uk. Watkins Solicitors has offices in Southville and Fishponds, Bristol, and Bath City Centre.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.