News story legal challenge

3rd July 2020 • Emma Cooper

The Department for Education has released guidance to support special schools, special post-16 institutions (SPIs) and other specialist education settings with welcoming all children and young people back to full-time education from the beginning of the autumn term.

The guidance comprises five sections but perhaps the most notable addresses the temporary changes to SEND legislation that were put in place in May. As a result of the coronavirus pandemic, Section 42 of the Children and Families Act 2014 was modified so that local authorities and health commissioners could use ‘reasonable endeavours’ to secure or arrange the specified special educational/health care provision in Education, Health and Care Plans (EHCPs).

The guidance states that ‘we are committed to removing these flexibilities as soon as possible so that children and young people can receive the support they need to return to school. As such, unless the evidence changes, we will not be issuing further national notices to modify the EHC duties, but will consider whether any such flexibilities may be required locally to respond to outbreaks.’

The guidance goes on to state, ‘we will also continue to monitor the need for the temporary changes to the law on EHC needs assessments and plans that give local authorities and others who contribute to the relevant processes more flexibility in responding to the demands placed on them by coronavirus (COVID-19). These changes are currently in force until 25 September.

‘We remain committed to listening to and working with local authorities, parent carer representatives and specialist SEND organisations, to ensure that the lifting of the temporary changes is managed in a way that supports the needs of children and young people with SEND.

All education settings have a statutory duty under equalities legislation to make reasonable adjustments for disabled children. Many children and young people will have found lockdown exceptionally difficult socially and emotionally. Settings should consider any challenging behaviours or social or emotional challenges arising as a response to the lockdown and offer additional support and phased returns where needed.’

How settings must prepare

Settings should not put in place rotas and education settings must comply with health and safety law, which requires them to assess risks and put in place proportionate control measures.

Settings should thoroughly review their health and safety risk assessments and draw up plans for the autumn term that address the risks identified using the system of controls set out below. These are an adapted form of the system of protective measures that will be familiar from the summer term.

Essential measures include:

  • A requirement that people who are ill should stay at home.
  • Robust hand and respiratory hygiene.
  • Enhanced cleaning arrangements.
  • Active engagement with NHS Test and Trace.
  • Formal consideration of how to reduce contacts and maximise distancing between those in school or college and wherever possible minimise potential for contamination so far as is reasonably practicable.

How contacts are reduced will depend on the setting’s circumstances and will (as much as possible) include:

  • Grouping children together.
  • Avoiding contact between groups.
  • Arranging classrooms with forward facing desks.
  • Staff maintaining distance from pupils and other staff.

School transport

The guidance asks settings to consider:

  • How pupils are grouped together on transport, where possible this should reflect the bubbles that are adopted within the setting.
  • Use of hand sanitiser upon boarding and/or disembarking.
  • Additional cleaning of vehicles.
  • Organised queuing and boarding where possible.
  • Distancing within vehicles wherever possible.
  • The use of face coverings for children over the age of 11, where appropriate – for example if they are likely to come into very close contact with people outside of their group or who they do not normally meet.

Dedicated school services can take different forms. Some journeys involve coaches regularly picking up the same pupils each day; others involve use of a minibus; whilst other services are used by different pupils on different days, or by pupils with SEND. The precise approach taken will need to reflect the range of measures that are reasonable in the different circumstances.

It will also require a partnership approach between local authorities, schools, trusts, dioceses and others. In particular, it is imperative that schools work closely with local authorities that have statutory responsibility for ‘home to school transport’ for many children, as well as a vital role in working with local transport providers to ensure sufficient bus service provision. The Department for Education will shortly publish new guidance to local authorities on providing dedicated school transport, based on the framework outlined here.

Given the pressures on public transport services it may also be necessary to work with local authorities so that they can identify where it might be necessary to provide additional dedicated school transport services, including in places where these services do not currently operate. [The government is currently evaluating this position and will set out next steps shortly].

Other considerations

Some children and young people with SEND (whether with EHCPs or on SEN support) will need specific help and preparation for the changes to routine that these measures will involve, so staff should plan to meet these needs, for example using social stories.

Specialists, therapists, clinicians and other support staff for pupils with SEND should provide interventions as usual. Supply teachers, peripatetic teachers or other temporary staff can move between settings. They should ensure they minimise contact and maintain as much distance as possible from other staff. Settings should consider how to manage other visitors to the site, such as contractors, and ensure site guidance on physical distancing and hygiene is explained to visitors on or before arrival. Where visits can happen outside of school or college hours, they should. A record should be kept of all visitors.

Where a child or young person routinely attends more than one setting on a part time basis, for example because they are dual registered at a mainstream school and a special setting, the settings should work through the system of controls collaboratively, enabling them to address any risks identified and allowing them to jointly deliver a broad and balanced curriculum for the child or young person. Pupils should be able to continue attending both settings. While some adjustment to arrangements may be required, pupils in this situation should not be isolated as a solution to the risk of greater contact.

The full guidance is available to read here.