Education Lawyers talk coronavirus and ehcps

Just last week, a typical Monday morning for most families would have consisted of early starts, hunting for PE kits, rushed routines and doing the school run.

This Monday looks wildly different for everyone after Gavin Williamson MP and the Department for Education took the unprecedented decision to close schools on Friday 20th March 2020 because of coronavirus (COVID-19).

Shortly after this announcement came the news that children of key workers like NHS staff, police and supermarket delivery drivers, as well as vulnerable children would still be able to attend school. So what does this mean for children who have an Education, Health and Care Plan (EHCP)? How will it affect school transport? Where does this leave your Annual Review? Rukhsana Koser, Solicitor Education Lawyers at Langley Wellington LLP Solicitors offers some guidance on this confusing and rapidly changing situation.

If schools are unable to look after the children it is staying open for, local authorities will work with the Department for Education’s regional teams to ensure an alternative option is available in the same area. The government is asking schools, where possible, to look after key worker’s children and vulnerable children throughout the Easter holidays. The scientific advice is saying that these settings are safe for this small number of children to continue attending and that by asking all others to stay at home, this will help slow the spread.

The Coronavirus Bill

In an attempt to manage the outbreak in the UK, the Department of Health and Social Care (DHSC) is introducing new fast-tracked legislation.

The Coronavirus Bill is proposing to provide powers relaxing statutory provisions for children and young adults with special educational needs. For instance, the Local Authority’s (LA’s) duty to secure special educational and health provision in accordance with an EHCP may change from an absolute duty to provide the provision to a reasonable endeavours duty to secure the provision. The LA will only have to show it has taken reasonable endeavours to discharge the duty, which means your child will be provided with less provision during the time the legislation is in force.

These are unprecedented and uncertain times and parents of children and young adults with EHCP’s and medical conditions will rightly be very concerned and anxious to protect their rights and entitlements.

The situation is changing at a fast pace but currently; education lawyers are recommending the following advice to parents and carers:

  • You know and understand your child better than anyone. You will need to make decisions in their best interests to keep them, yourselves and your family safe and healthy during this very concerning time.
  • Speak to your child’s school to find out if it will be remaining open and how they will be supporting you for the foreseeable future.
  • Check with the school and LA that transport will be available and is safe to continue for your child.
  • If your school will be closing, speak to your LA and find out which alternative school your child can attend and if transport will be provided. You must visit this school to assure yourself it would be appropriate for your child for the foreseeable future.
  • Remember if a place at an alternative school is offered, the school may not be able to deliver some of the specific and quantified provision in Section F of your child’s EHCP.

If you don’t feel that school is the right place for your child:

  • You cannot be compelled to send your child to school, if you do not want to and can keep them safe at home. Therefore, it is important to ask yourself, where will my child be most likely to be safe and healthy both physically and emotionally? How will my child feel about going to school when their siblings and peers are at home?
  • If attending school is not the right option for your child and accessing education at home remotely is not possible, then focus on your child’s strengths and what they enjoy.
  • Contact the LA to find out what additional support can be provided to you and your family at home. If your child has an EHCP, they are a child in need and the LA will have additional statutory duties under the Children Act 1989.
  • Remember provision will return once normality resumes and you will need to think about how your child will transition back to school and what resources will be necessary to support that transition.

Tribunal appeals and hearings during the coronavirus outbreak

During the coronavirus outbreak, the work of the Special Educational Needs and Disability Tribunal will continue and any changes to an individual’s final appeal hearing will be communicated directly to the parties involved by email or telephone.

No face to face hearings will take place. Instead, your appeal will be determined on paper, or through telephone conferencing or video conferencing. You will need to check your witnesses will be able to join the hearing remotely.

There is no need to contact the Tribunal now to find out how your appeal will be determined as you will be contacted directly.

Education, Health and Care Needs Assessments and Annual Review

The LA’s will be required to continue to undertake Education, Health and Care Needs assessments, however, it may not always be possible to meet statutory deadlines.

Similarly there will need to be some flexibility around holding an Annual Review meeting and the timescales. If your child’s EHCP requires amendments or you are considering a change in placement, speak to your school and the LA and try to agree a way forward.