School & EHCP support

As a result of the third  national lockdown, government guidance to school’s has again been updated.  A full copy of this guidance is available here: Actions for schools during the coronavirus outbreak – GOV.UK (www.gov.uk)     

This guidance applies to all schools in England, including special, independent, and residential schools, but  excludes maintained nursery schools and pre-reception classes. 

There is separate guidance for Further Education Colleges: Actions for FE colleges and providers during the coronavirus outbreak – GOV.UK (www.gov.uk)  this applies to sixth form colleges, general FE colleges, independent training providers, designated institutions, adult community learning providers and special post-16 institutions. 

As we explained with earlier versions of the guidance, whilst it is not statutory guidance, it is expected that in these unprecedented times, schools, colleges and other places of education will follow the guidance in delivering educational provision. 

Even though separate guidance has been issued for specialist Further Education settings, the same guidance applies to all schools.    

Re-opening & Attendance  

Pupils are not expected to return before February half term.   

Currently, only pupils that fall into the limited categories of being vulnerable or the child of critical workers can continue to attend school. The category of ‘vulnerable’ has been broadened from previous guidance and now includes children: 

• assessed as being in need under section 17 of the Children Act 1989, including children and young people who have a child in need plan, a child protection plan or who are a looked-after child with an EHCP 
• identified as otherwise vulnerable by educational providers or local authorities (including children’s social care services), and who could therefore benefit from continued full-time attendance. This may include: 
  • children and young people on the edge of receiving support from children’s social care services or in the process of being referred to children’s services 
  • adopted children or children on a special guardianship order 
  • children at risk of becoming NEET (‘not in employment, education or training’) 
  • children living in temporary accommodation 
  • children that are young carers 
  • children that may have difficulty engaging with remote education at home, for example due to a lack of devices or quiet space to study, 
  • care leavers 
  • All pupils in special schools and special post 16 settings will fall into the  vulnerable category, along with a high number of pupils in Alternative Provision, so the expectation is that these settings will remain open to deliver full-time face-to-face education. 

The Guidance encourages the parents of vulnerable pupils to take up a place at school during the current lockdown, however it is equally clear that where a parent does not wish their child to attend during lockdown, then the absence should be authorised. Even in this situation, schools are expected to ensure that the welfare of the pupil is secure and that they can access appropriate education and support whilst at home. 

The guidance identifies special school pupils and those attending alternative provision as needing to continue to provide face to face provision, where appropriate.  So, special schools, special post-16 institutions and Alternative Provision should continue to offer face-to-face education to their pupils. 

Special Educational Provision

Guidance for pupils with complex medical needs is here: Safe working in education, childcare and children’s social care settings, including the use of personal protective equipment (PPE) – GOV.UK (www.gov.uk) 

As with previous lockdowns, the legal duties for children and young people with SEN  still remain in place. Broadly, that is: 

• Local Authorities to have regard to the SEN Code of Practice 2015 
• Best endeavours duty to secure the special educational provision called for by the pupil’s SEN 
• Equality Act 2010 duties on schools. 

Practically, placements will have to make changes to the way they deliver education to ensure the environment is as safe as possible from the risk of coronavirus, but this needs to be compatible with their legal duties above. 

Two key additions to the guidance are: 

1. risk assessments used in the previous national lockdown where schools restricted attendance should not be used to filter students in or out of attendance now. 
2. settings should not only ensure that appropriate support is made available for pupils with SEND, but that they can continue to deploy teaching assistants and enable specialist staff from both within and outside the school to work with pupils in different classes or year groups. Provision of Remote Education 

The Department for Education has issued a direction; from 22 October 2020 most schools must provide remote education  to pupils when children travelling to or attending school would be against Public Health England or Secretary of State guidance or the law relating to COVID-19. 

The direction applies for the rest of the 2020-21 academic year and to children: 

• of compulsory school age 
• who are under compulsory school age but are usually taught in a class of children who are compulsory school age
• who are registered at schools in England which are fully state funded including independent schools named in EHCPs, pupil referral units and alternative provision academies. 

This includes children who live in Scotland, Northern Ireland or Wales but attend school in England, and where travelling to or attending their school would be against guidance issued by a public authority for the country they live in. 

The direction also means these schools must have regard to Department for Education guidance on remote education when they provide it. 

The guidance states that schools should work with families to deliver an ambitious curriculum appropriate for the level of need of their pupils with SEND, bearing in mind that many of these pupils won’t be able to access remote education without adult support.   

 Special guidance has been produced for schools on getting help with delivering remote education: Get help with remote education – GOV.UK (www.gov.uk) 

New information has also been made available for schools and local authorities to get support to secure IT and internet access for certain pupils:  Get help with technology during coronavirus (COVID-19) – GOV.UK (www.gov.uk). 

Re-opening

Schools and colleges should now be fully open with all pupils attending school full-time, except those who are clinically extremely vulnerable during the current national lockdown. The government requires early years settings, schools, colleges and universities to remain open during the current national lockdown. 

The current  guidance for settings says that children and young people should continue to attend unless they are currently clinically extremely vulnerable. A link to the full guidance is here  Education and childcare settings: national restrictions from 5 November 2020 – GOV.UK (www.gov.uk)

As regards the re-opening of schools, if your child attends a special school, here is the link to the guidance that applies to those specifically: Guidance for full opening: special schools and other specialist settings – GOV.UK (www.gov.uk)

For all other types of school, here is the relevant guidance: Guidance for full opening: schools – GOV.UK (www.gov.uk)

Do note that this is not statutory guidance, so strictly speaking, there is no duty for settings to have regard to it. However, it is expected that in these unprecedented times schools, colleges and other places of education will have used this to plan re-opening. 

Special educational provision

Here is the link to specific guidance for  caring for pupils with complex medical needs: https://www.gov.uk/government/publications/safe-working-in-education-childcare-and-childrens-social-care/safe-working-in-education-childcare-and-childrens-social-care-settings-including-the-use-of-personal-protective-equipment-ppe#what-specific-steps-should-be-taken-to-care-for-children-with-complex-medical-needs-such-as-tracheostomies

The legal duties for children and young people with SEN remain in place. Broadly, that is:

• Local Authorities to have regard to the SEN Code of Practice 2015
• Best endeavours duty to secure the special educational provision called for by the pupil’s SEN
• Equality Act 2010 duties on schools.

Practically, placements will have to make changes to the way they deliver education to ensure the environment is as safe as possible from the risk of coronavirus, but this needs to be compatible with their legal duties above.

Attendance

The guidance for parents and carers confirms that school attendance is mandatory from the beginning of the new academic year.

Additionally, under s.7 Education Act 1996 , if your child is on the roll of a school, regular attendance is expected, and action may be taken against you for unauthorised absences. Post 16, parents, carers and young people cannot be prosecuted for non-attendance but failure to regularly attend without agreement may mean that the young person does not receive home-schooling and it may affect their ability to stay on the course.

On circumstances where absence should be authorised as ‘not attending in circumstances related to coronavirus’, please use this link:

https://www.gov.uk/government/publications/school-attendance/addendum-recording-attendance-in-relation-to-coronavirus-covid-19-during-the-2020-to-2021-academic-year#new-for-2020-to-2021–not-attending-in-circumstances-related-to-coronavirus-covid-19

Guidance on school reopening outlines arrangements for pupils unable to attend school because they are complying with clinical or public health advice:

• schools to immediately offer access to remote education
• schools should keep a record of, and monitor engagement with this activity but this does not need to be formally recorded in the attendance register
• where children are not able to attend school as they are following clinical or public health advice related to coronavirus (COVID-19), the absence will not be penalised.

Current guidance states that during the current lockdown:

1. Most children originally identified as clinically extremely vulnerable no longer need to follow original shielding advice. Parents are advised to speak to their child’s GP or specialist clinician to understand whether their child should still be classed as clinically extremely vulnerable
2. Those children whose doctors have confirmed they are still clinically extremely vulnerable are advised not to attend childcare or nursery during the period this advice is in place
3. Children who live with someone who is clinically extremely vulnerable, but who are not clinically extremely vulnerable themselves, should still attend education or childcare
4. Parents of clinically extremely vulnerable children will be receiving a letter shortly confirming this advice. (Young people over 18 will receive this letter directly.)

Full guidance can be found here: https://www.gov.uk/guidance/education-and-childcare-settings-new-national-restrictions-from-5-november-2020:

It should be noted that this is a change from the guidance which applied before the current national lockdown which said that clinically extremely vulnerable children were expected to attend educational settings.

If you are concerned about your child attending school for health reasons, you should speak with your doctor and the placement to discuss whether or not it is clinically advisable for your child or young person to attend. If the clinical opinion is that they should not, it is advisable to secure written confirmation from your doctor and share this with the placement, requesting that they immediately authorise the absence and provide home-learning until attendance can resume.

After the current national lockdown

The national lockdown is due to end on 2 December 2020 with a recommencement of the local tiered COVID Alert Level system in place previously being reintroduced. 

Current guidance (Guidance for full opening: schools – GOV.UK (www.gov.uk))  states that in very high COVID-19 alert level areas, clinically extremely vulnerable people may be advised to shield but this will only be in exceptional circumstances, and that in these cases, the government will write to these families to inform them if they are to shield and not attend school. If you receive this letter your child or young person should immediately receive education at home from their placement. 

Local authorities must not make children or young people with EHCPs go through the usual schools admissions process. The law sets out a separate process for pupils with EHCPs.

The SEN and Disability Regulations 2014 define this as a transfer from:

(a)  early years education to school
(b)  infant school to junior school
(c)  primary school to middle school
(d)  primary school to secondary school
(e)  middle school to secondary school
(f)   secondary school to a post-16 institution.

The same regulations require that the EHCP must be reviewed and amended before:

(a) 31 March if the transfer is from secondary school to a post-16 institution
(b) 15 February in any other case, or
(c) if a young person is moving from one post-16 institution to another post-16 institution at any other time, at least five months before that transfer takes place.

There must be an annual review before a phase transfer occurs. Practically then, local authorities should start the annual review process in the Autumn term of the year before the pupil is due make the phase transfer.

So, where a pupil is moving to a new phase of their education, the process should be:

1. Local Authority reviews the EHCP using the annual review process
2. Local Authority sends proposed amendments as a Draft EHCP (with section I left blank) to the parent or young person
3. Parent or young person has at least 15 days to make representations about the Draft EHCP and to either request that a particular school (from the list in section 38(3) Children and Families Act 2014) is named or to express a preference for an independent placement
4. Local Authority issues a final amended EHCP by no later than the relevant deadline listed above.

If you disagree with the Final Plan, you can appeal the educational sections (B, F and I) to the SEN Tribunal. 

An Education Health & Care Plan replaces Statements of Special Educational Needs in England, as a result of the Children and Families Act 2014. By 1 April 2018, all Statements of SEN should have been replaced with an EHCP following a legally prescribed transition process.

In Wales, Statements of SEN remain in force and are governed by the Education Act 1996 and associated regulations.

EHCPs are made up of a minimum of 12 sections, specifying educational, health and care needs and provision. Statements of SEN are 6 sections specifying educational and non-educational needs and provision.

The first step in the process is to request an Education, Health and Care Needs Assessment of the child. An EHC Needs Assessment informs a Local Authority’s decision on whether it needs to issue an EHCP for the child or young person.

Once a Local Authority agrees to carry out an EHC Needs Assessment it must seek advice from a number of professionals. Based on the evidence gathered it will then decide whether to issue an EHCP for that child or young person.

Local Authorities must carry out an EHC Needs Assessment first and on the basis of the information gathered from that process, will decide whether to issue an EHCP. An EHCP Needs Assessment request must be made in writing to the Local Authority. The request can be made by a Parent or educational setting. This request needs to be responded to within 6 weeks by the Local Authority.

Please remember, you don’t have to make the EHC Needs Assessment Request through your child’s school. If you want your school to request a EHCP needs assessment on your behalf, often local authorities will require evidence of all the interventions the school have put in place to consider it. It is therefore essential that if you have any concerns regarding your child’s progress you must raise it with the school at the earliest opportunity so they can start to put things in place and begin to gather evidence. If school are concerned about putting in the request for you, remember that you are able to do this yourself directly to the local authority.

An EHC Needs Assessment is an integrated assessment of the education, health care and social care needs of the child or young person.

A Local Authority must seek advice on a child or young person’s needs, the provision to meet those needs and outcomes expected to be achieved. Advice can be sought from:

• the child’s parent or the young person
• educational advice – if the child or young person is visually impaired then the advice must come from a suitably qualified professional
• a health care professional
• an educational psychologist
• social care
• any other person the local authority thinks is appropriate
• where the child or young person is in or beyond Year 9, advice in relation to provision to assist the child or young person in preparation for adulthood and independent living
• advice from any person the child’s parent or young person reasonably requests that the Local Authority seek advice from

The Local Authority does not have to seek new advice from any of the individual professionals listed above where it already exists and has been been provided for any purpose. This exception only applies if the professional providing that advice, the Local Authority and the child’s parent are satisfied that the existing advice is sufficient for the purposes of an EHC Needs Assessment.

These are newly introduced elements of EHCPs. Local Authorities can now be requested to identify a ‘personal budget’ for a child or young person that an EHCP is maintained for. A personal budget is an amount of money identified by a Local Authority to deliver provision set out in the EHCP where the parent or young person is involved in securing that provision. Information about the availability of personal budgets must be contained in the Local Authority’s local offer.

In certain circumstances, the Local Authority can refuse to identify a personal budget, namely when the special educational provision is being provided as part of an overall budget and the Local Authority say that they can’t disaggregate the personal budget from overall budget. An example is where a Local Authority has a contract with an NHS therapy service to deliver all provision for a region.

Parents or young people can then request that a Local Authority consider making a direct payment to them so that they can arrange the delivery of provision themselves. This will be an actual payment of money instead of the Local Authority arranging for the provision to be delivered.

Where the provision proposed to be replaced by a direct payment takes place in a school or college setting, the consent of the Head Teacher or Principal of the named school or other institution is required.

The Children and Families Act 2014, which is the legal framework for EHCPs, states that once a young person reaches the end of compulsory school age, all rights that were previously held by the parent, pass to the young person, subject to the young person having mental capacity, as per the Mental Capacity Act 2005.

Once a young person is 16, a Local Authority should contact the young person directly, however the involvement of parents in discussing the young person’s future is encouraged by the SEN Code of Practice. The young person can also seek further involvement from their parents and should notify the Local Authority if they want their parents to be included in communications/attend meetings etc.

When it is agreed that a young person does not have capacity to make a decision about appropriate education needs, then parents will automatically make that decision for them unless the Court of Protection has appointed a different person to be their Deputy.

They would have to make the decision which was in the best interests of the young person concerned. The Local Authority would also still have to seek the young person’s views as part of any decision-making process. There may be disagreement between the parents, the young person, the school/college being attended and/or the Local Authority, regarding a young person’s mental capacity to make a decision. It may then be necessary to seek an assessment to provide a professional opinion of the young person’s capacity to make the decision.

A Mental Capacity Assessment might also be helpful to support a parent who wished to take a decision on behalf of a young person and was being challenged by a Local Authority about their right to do so. A parent would be expected to explain the basis of their belief that the young person lacked capacity and an assessment might help them to do so. Such an assessment may not be necessary in all cases however, depending on the other evidence available to support the parent’s belief.

The SEND Tribunal is the legally identified route of redress against Local Authority decisions for specified matters concerning EHCPs. It is an independent national tribunal which hears parents’ and young people’s appeals against Local Authority decisions about the special educational needs of children and young people. Specifically, parents/young person can appeal to the SEND Tribunal against the following Local Authority decisions:

1. not to secure an EHC Needs Assessment
2. that it is not necessary for special educational provision to be made in accordance with a Plan
3. where an EHC Plan is maintained for the child or young person and it is first finalised, or thereafter amended or replaced
   i. specified special educational needs – Section B
   ii. specified special educational provision – Section F
   iii. named school/institution/specified type – Section I
   iv. the fact that no school/institution is named – Section I
4. not to secure a re-assessment following a request
5. not to amend/replace a Plan following review/re-assessment
6. to cease to maintain a Plan.

The SEND Tribunal has the power to make a binding decision on these issues and has extensive powers to do so. The outcome of a SEND Tribunal replaces the decision that the Local Authority made which you are appealing.

The SEND Tribunal service is free to use and you are able to pursue the process unrepresented. However, many parents choose to take legal assistance and commission specialist evidence such as expert reports – these costs are not recoverable from the Tribunal.

Local Authorities are required to arrange free and suitable home-to-school transport for children of compulsory school age who are ‘eligible’ to their nearest suitable qualifying school.

Eligible children is defined under four categories:

1. Children with SEN, a disability or a mobility difficulty
2. Children whose route to school is unsafe
3. Children who live beyond the statutory walking distance
4. Children from low income families.

Children with an EHCP will fall under category A.

Compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which s/he turns 16.

A qualifying school is a:

• maintained (publicly funded) school or nursery
• non-maintained special school
• pupil referral unit
• city technology college
• an Academy
• For a child with an EHCP, an independent school can also be a qualifying school if this is the only school named in Section I of the EHCP.

The Home to School Travel and Transport Guidance 2014 provides details on the types of travel arrangements that satisfy the legal duties on Local Authorities.

In respect of ‘adult learners’ (young people over sixth form age, those who are 19 and up; if they started a course of further education before their 19th birthday, they remain of sixth form age until they complete that course), Local Authorities must make such arrangements for the provision of transport, as they consider necessary to facilitate the attendance of adults receiving education at institutions maintained or assisted by the authority and providing further or higher education (or both), or within the further education sector. If an adult learner has an EHCP, then this supports travel arrangements being ‘necessary’: since Local Authorities have a duty to secure the special educational provision specified in an EHCP, getting to the placement is crucial to this.

Speech and language provision should be specified in Section F of the EHCP and by law, Local Authorities are required to secure the special educational provision specified in Section F.

Once you discover the provision is not being provided, you need to raise this with the Local Authority directly and immediately, in writing. It may also be worth meeting with the placement directly to find out why the provision has stopped. If you do not receive a response within 14 days, you need to consider escalating the matter to court action of Judicial Review. Parents and young people are strongly recommended to seek the assistance of a solicitor as soon as possible and before pursuing any action.

Mediation in SEN matters is an optional, not mandatory process. In most cases, you need to secure a Mediation Certificate to lodge an appeal with the SEND Tribunal, which can be done either by pursuing mediation (and securing a certificate at the end of the process) or simply contacting the nominated mediation service and requesting a certificate i.e without going through mediation.

Mediation is an informal process which attempts to resolve the issue; it involves a meeting between parents/young person and Local Authority (and any relevant parties) where the dispute(s) are discussed, in light of which, a different decision may be reached.

The document is produced and maintained by your Local Authority and should specify the special educational needs and special educational provision required by the child/young person. The EHCP should also specify the educational placement that the child/young person should attend. The Plan also has sections that should detail the health care provision that has been assessed as reasonably required for the child/young person and social care provision which is being made for the child/young person under the Chronically Sick and Disabled Persons Act 1970 and any other social care provision that has been assessed as reasonably required.

The content of the EHCP should be informed by an assessment process called an Education, Health and Care Needs Assessment.

The Local Authority is legally required to ensure that the special educational provision specified in the EHCP is delivered to the child/young person.

The local health care provider is legally required to arrange the health care provision specified in the EHCP.