The guidance can be found here.
Notice by the Secretary of State for Education | 1st June to 30th June 2020
The Secretary of State has issued a further Notice to be in force from 1st June to 30th June inclusive which temporarily modifies the duties on local authorities under s42 Children and Families Act 2014. The duty is downgraded to ‘reasonable endeavours’. This notice does not release local authorities or health commissioning bodies from their responsibilities entirely; instead they must use their ‘reasonable endeavours’ to secure or arrange the provision. Due to Covid-19, the provision set out in sections F and G of an individual’s EHC plan may be provided in a different way temporarily. ‘Reasonable endeavours’ is fact-specific for each case and does not mean that public bodies can do nothing. Once the notice expires full provision should again be provided as set out in the EHC plan unless a further notice is issued for the following month.
Four sets of Regulations have been temporarily amended that specify the timescales that apply to local authorities, health commissioning bodies and others particularly in relation to EHC needs assessments and plans. For full details of the timescales, please see Annex A which provides information on the amendments to the existing Regulations. The specific timescales however, may be modified if it is not reasonably practical or impractical for a local authority or others to be able to conclude the process for a reason relating to coronavirus. Key implications for all those who are involved in the processes relating to EHC needs assessment and plans are also summarised in this guidance.
The timescales in the regulations being amended include the following:
- the handling of requests for EHC needs assessments and re-assessments, decisions whether to issue plans and the preparation, issue, review and amendment of plans
- annual reviews of EHC plans (but not the dates for annual reviews relating to transfers between phases of education)
- the processes relating to mediation
- the processes where there is a change of local authority or health commissioning body for a plan
- the process for a local authority reviewing for the first time the making and use of direct payments from a Personal Budget that is part of an EHC plan
- the action that a local authority must take when the First-tier Tribunal makes an order
- the actions that the local authority and health commissioning body must take when the First-tier Tribunal makes non-binding recommendations in respect of certain types of health and social care matters within an EHC plan (as part of the National Trial, which continues)
Note that the relaxation of the timescales only applies where, in your particular case, it is not reasonably practicable for the local authority to meet those timescales, because of Covid-19. There are therefore two qualifications on the relaxation:
- Your individual case must be considered (rather than simply a statement that there is no requirement to meet statutory timescales); and
- The reason for being unable to meet the timescale must have a link to Covid-19.
Annual reviews of EHC plans
The Secretary of State for Education has the power under the Coronavirus Act 2020 by notice to temporarily disapply the duty to conduct annual reviews. This notice however, has not been issued and therefore the annual review requirements remain in place.
Due to the coronavirus pandemic, annual reviews may need to be conducted differently (eg. phone or a virtual meeting), however it is essential that the child or young person is at the centre of the process and all key professionals are involved wherever possible. A review, even if briefer than usual, can provide reassurance for the parents, children and young people that their EHC plan is up-to-date and the appropriate provision can be received. If the local authority is unable to complete an annual review within the prescribed timescales due to coronavirus making it impractical, then the review must be completed as soon as reasonably practicable.
Local authorities should have already completed this year’s transfer reviews for a child or young person transitioning:
- Into or between schools
- From secondary school to a post 16 institution/apprenticeship
- Between post-16 institutions.
The statutory deadlines for these reviews remain unchanged and therefore if there has been a delay, the transfer review should be finalised as a matter of urgency.
What hasn’t changed…
Despite the modifications outlined above and in our previous article of the 27th May, key elements of the EHC needs assessments and plan processes remain unchanged. These include:
- Requests for new EHC needs assessments or re-assessments must be considered by the local authority
- Where an EHC needs assessment will be carried out, the local authority must secure all of the required advice and information to be able to issue the plan.
- Local authorities must have regard to the views and wishes of the parents, child or young person (s19 of the Children and Families Act 2014)
- A final EHC plan must still include ALL of the required advice and information
- The provision set out in the final EHC plan should adhere to the statutory requirements and not be limited because of the circumstances of Covid-19
- Review and re-assessments of EHC plans must still take place (see section on annual reviews above).
- Redress to the First-tier Tribunal (SEN and Disability) is unchanged
- There remains a duty on schools to admit pupils if that school is named in their Plan under s43 of the Children and Families Act 2014
We would also emphasise, as above, that ‘reasonable endeavours’ still need to be undertaken to provide special educational provision. What would be reasonable will differ in every case.
Guidance is continually being updated but should you have any concerns about a child/young person’s EHC plan or assessment, please contact our education team for a free initial consultation on 01926 354704.